Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest with respect to the Securities of any series, as defined in this Section 8.08, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect specified in Section 8.10. (b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 with respect to the Securities of any particular series, the Trustee shall, within ten days after the expiration of such 90-day period, mail notice of such failure to all holders of Securities of that series, as the names and addresses of such holders appear upon the registry books of the Corporation. (c) For the purposes of this Section 8.08 the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any particular series if: (1) the Trustee is trustee under this Indenture with respect to the outstanding Securities of any other series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Corporation, are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities of that series; PROVIDED that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any other series other than that series or any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Corporation, are outstanding if (i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to the Securities of that series and such other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures, or (ii) the Corporation shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of one or more series or under one of such indentures; (2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series issued under this Indenture or an underwriter for the Corporation; (3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation or an underwriter for the Corporation; (4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the Corporation, or of an underwriter (other than the Trustee itself) for the Corporation who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the Corporation, but may not be at the same time an executive officer of both the Trustee and the Corporation; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or an executive officer of the Trustee and a director of the Corporation; and (C) the Trustee may be designated by the Corporation or by an underwriter for the Corporation to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee whether under an indenture or otherwise; (5) ten percent or more of the voting securities of the Trustee is beneficially owned either by the Corporation or by any director, partner, or executive officer thereof, or twenty percent or more of such voting securities is beneficially owned, collectively, by any two or more such persons; or ten percent or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons; (6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Corporation, not including the Securities of any series with respect to which the Trustee is acting as such and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten percent or more of any class of security of an underwriter for the Corporation; (7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, five percent or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with the Corporation; (8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, ten percent or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty percent or more of the voting securities of the Corporation; or (9) the Trustee owns on May 15 in any calendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs (6), (7), or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five percent of such voting securities or twenty-five percent of any such class of security. Promptly after May 15, in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15. If the Corporation fails to make payment in full of principal of (or premium, if any) or interest on any of the Securities when and as the same become due and payable, and such failure continues for thirty days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30-day period and, after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c). The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c).
Appears in 1 contract
Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest with respect to the Securities of any seriesinterest, as defined in this Section 8.08Section, it shall, within 90 days after ascertaining that it has such conflicting interest, and if an Event of Default as defined in subsection (c) of this Section to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect specified in Section 8.107.10.
(b1) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 with respect to the Securities of any particular seriesSection, the Trustee shall, within ten 10 days after the expiration of such 90-day period, mail transmit notice of such failure in the manner and to the extent set forth in Section 5.04(c), to all holders noteholders of Securities the series affected by the conflicting interest.
(2) Subject to the provisions of that seriesSection 6.14, unless the Trustee's duty to resign is stayed as provided below in this Section, any noteholder who has been a bona fide holder of Notes of any series affected by the names conflicting interest for at least six months may, on behalf of himself and addresses all others similarly situated, petition any court of competent jurisdiction for the removal of such holders appear upon Trustee, and the registry books appointment of a successor, if such Trustee fails, after written request thereof by such holder to comply with the Corporationprovisions of subsection (a) of this Section.
(c) For the purposes of this Section 8.08 the Trustee shall be deemed to have a conflicting interest with respect to Notes of a particular series if a default (under the Securities terms of this Indenture, but exclusive of any particular series ifperiod of grace or requirement of notice) has occurred with respect to such Notes, and:
(1) the Trustee is trustee under this Indenture with respect to the outstanding Securities Outstanding Notes of any other series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Corporation, Company are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities of that seriesNotes issued under this Indenture; PROVIDED provided, however, that there shall be excluded from the operation of this paragraph paragraph, (A) this Indenture with respect to the Securities Notes of any other series other than that series or series, and (B) any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Corporation, Company are outstanding if if:
(i) this Indenture and is, and, if applicable, such other indenture or indentures are are, wholly unsecured and rank equally, and such other indenture or indentures are hereafter qualified under the Trust Indenture Act Act, as in effect at the time of 1939such qualification, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to the Securities of that such particular series and such (A) one or more other series in this Indenture or (B) the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that such particular series and such other series or such other indenture or indentures, or or
(ii) the Corporation Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities of that such particular series and such other series or under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of one or more such particular series and such other series or under one of this Indenture and such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series issued under this Indenture or an underwriter for the CorporationCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation or an underwriter for the CorporationCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the CorporationCompany, or of an underwriter (other than the Trustee itself) for the Corporation who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the Corporation, but may not be at the same time an executive officer of both the Trustee and the Corporation; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or an executive officer of the Trustee and a director of the Corporation; and (C) the Trustee may be designated by the Corporation or by an underwriter for the Corporation to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee whether under an indenture or otherwise;
(5) ten percent or more of the voting securities of the Trustee is beneficially owned either by the Corporation or by any director, partner, or executive officer thereof, or twenty percent or more of such voting securities is beneficially owned, collectively, by any two or more such persons; or ten percent or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Corporation, not including the Securities of any series with respect to which the Trustee is acting as such and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten percent or more of any class of security of an underwriter for the Corporation;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, five percent or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with the Corporation;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, ten percent or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty percent or more of the voting securities of the Corporation; or
(9) the Trustee owns on May 15 in any calendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs (6), (7), or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five percent of such voting securities or twenty-five percent of any such class of security. Promptly after May 15, in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15. If the Corporation fails to make payment in full of principal of (or premium, if any) or interest on any of the Securities when and as the same become due and payable, and such failure continues for thirty days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30-day period and, after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c). The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c).an
Appears in 1 contract
Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest with respect to the Securities of any seriesinterest, as defined in this Section 8.087.08, it shallthen, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 7.08(c)) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided in this Section 7.08, resign with respect to the Securities of that series in the manner and with the effect specified in Section 8.107.10, and the Company shall take prompt steps to have a successor appointed in the manner provided in Section 7.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 with respect to the Securities of any particular series7.08(a), the Trustee shall, within ten days after the expiration of such 90-day period, mail transmit notice of such failure to all holders of Securities of that series, as the names noteholders in the manner and addresses of such holders appear upon to the registry books of the Corporationextent provided in Section 5.04(c) with respect to reports pursuant to Section 5.04(a).
(c) For the purposes of this Section 8.08 7.08, the Trustee shall be deemed to have a conflicting interest with respect to if the Securities Notes are in default (defined as the occurrence of any particular series if:event specified in Section 6.01, but exclusive of any period of grace or requirement of notice) and
(1) the Trustee is trustee under this Indenture with respect to the outstanding Securities of any other series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Corporation, Company are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities of that series; PROVIDED Notes issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any other series other than that series or any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Corporation, Company are outstanding if (i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection Subsection (b) of Section 305 or subsection Subsection (c) of Section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to the Securities of that series and such other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures, or (ii) the Corporation Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of one or more series or under one of such indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series issued under this Indenture or an underwriter for the CorporationCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation or an underwriter for the CorporationCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the CorporationCompany, or of an underwriter (other than the Trustee itself) for the Corporation Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the CorporationCompany, but may not be at the same time an executive officer of both the Trustee and the CorporationCompany; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or an executive officer of the Trustee and a director of the CorporationCompany; and (C) the Trustee may be designated by the Corporation Company or by an any underwriter for the Corporation Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee whether under an indenture or otherwise;
(5) ten percent or more of the voting securities of the Trustee is beneficially owned either by the Corporation Company or by any director, partner, or executive officer thereof, or twenty 20 percent or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or ten percent or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation Company or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the CorporationCompany, not including the Securities of any series with respect to which the Trustee is acting as such Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten percent or more of any class of security of an underwriter for the CorporationCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in defaultdefault (as defined hereinafter), five percent or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with with, the CorporationCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which that is in default, ten percent or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty 50 percent or more of the voting securities of the Corporation; orCompany;
(9) the Trustee owns on May 15 the date of default upon the Notes (defined as the occurrence of any event specified in Section 6.01, but exclusive of any calendar yearperiod of grace or requirement of notice) or any anniversary of such default while such default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five 25 percent or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs paragraph (6), (7), or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, apply for a period of two years from the date of such acquisition, acquisition to the extent that such securities included in such estate do not exceed twenty-five 25 percent of such voting securities or twenty-five 25 percent of any such class of security. Promptly after May 15, the dates of any such default upon the Notes and annually in each calendar yearsucceeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15dates. If the Corporation Company fails to make payment in full of principal of (of, or premium, if any) , Change of Control Purchase Price, Asset Sale Purchase Price or interest on on, any of the Securities Notes when and as the same become becomes due and payable, payable and such failure continues for thirty 30 days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30-day period andperiod, and after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long as such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c); or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act of 1939, the Trustee shall become a creditor of the Company. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes purpose of paragraph (3) or (7) of this subsection (c).
Appears in 1 contract
Samples: Indenture (Goldendale Aluminum Co)
Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest with respect to the Securities of any seriesinterest, as defined in this Section 8.08Section, it shall, within 90 ninety days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect specified in Section 8.107.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 with respect to the Securities of any particular seriesSection, the -50- Trustee shall, within ten days after the expiration of such 90ninety-day period, mail transmit notice of such failure to all holders Securityholders of Securities of that series, the series affected by the conflicting interest as the names and addresses of such holders Holders appear upon on the registry books of the CorporationSecurity Register.
(c) For the purposes of this Section 8.08 the Trustee shall be deemed to have a conflicting interest with respect to the a particular series if Securities of such series are in default (as such term is defined herein, but exclusive of any particular series ifperiod of grace or requirement of notice) and:
(1) the Trustee is trustee under this Indenture with respect to the outstanding Outstanding Securities of any other series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Corporation, Company are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities of that series; PROVIDED issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any other series other than that series or series, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, securities of the Corporation, Company are outstanding if (i) this Indenture is, and, if applicable, this Indenture and such other indenture or indentures are wholly unsecured and ranks equally, and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to the Securities of that such particular series and such one or more other series or in this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that such particular series and such other series or such other indenture or indentures, or (ii) the Corporation Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities of that such particular series and such other series or under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of one or more such particular series and such other series or under one of this Indenture and such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series issued under this Indenture or an underwriter for the CorporationCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation Company or an underwriter for the CorporationCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the CorporationCompany, or of an underwriter (other than the Trustee itself) for the Corporation Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or or an executive officer or both of the Trustee and a director and/or or an executive officer or both of the CorporationCompany, but may not be at the same time an executive officer of both the Trustee and the CorporationCompany; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or or an executive officer or both of the Trustee and a director of the CorporationCompany; and (C) the Trustee may be designated by the Corporation Company or by an any underwriter for the Corporation Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee trustee, whether under an indenture or otherwise;
(5) ten percent or more of the voting securities of the Trustee is beneficially owned either by the Corporation Company or by any director, partner, partner or executive officer thereof, or twenty percent or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or ten percent or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation Company or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the CorporationCompany, not including the Securities of any series with respect to which the Trustee is acting as such issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten percent or more of any class of security of an underwriter for the CorporationCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, five percent or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with with, the CorporationCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, ten percent or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty percent or more of the voting securities of the CorporationCompany; or
(9) the Trustee owns owns, on May 15 in the date of default on a Security or any calendar yearanniversary of such default, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs paragraph (6), (7), or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five percent of such voting securities or twenty-five percent of any such class of security. Promptly after May 15, in each calendar yearthe dates of any such default and the anniversary of such default if such default shall be continuing, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15dates. If the Corporation Company fails to make payment in full of principal of (or premium, if any) or interest on any of the Securities when and as the same become due and payable, and such failure continues for thirty days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30thirty-day period andperiod, and after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long as such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) ), and (8) of this subsection (c). The specifications specification of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c).
Appears in 1 contract
Samples: Indenture (Aon Corp)
Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest with respect to the Securities of any seriesinterest, as defined in this Section 8.08Section, it the Trustee shall, within 90 ninety days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect specified in Section 8.109.10 hereof.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 with respect to the Securities of any particular seriesSection, the Trustee shall, within ten days after the expiration of such 90-ninety day period, mail transmit notice of such failure to all holders the Bondholders, in the manner and to the extent provided in subsection (c) of Securities 7.03 hereof with respect to reports pursuant to subsection (a) of that series, as the names and addresses of such holders appear upon the registry books of the Corporationsaid 7.03.
(c) Subject to the provisions of 8.11, any Bondholder who has been a bona fide holder of a Bond or Bonds for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor if the Trustee fails, after written request therefor by such holder, to comply with the provisions of subsection (a) of this Section.
(d) For the purposes of this Section 8.08 Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any particular series if:if-
(1) the Trustee is trustee under this Indenture with respect to the outstanding Securities of any other series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Corporation, Company are outstanding, other than the Bonds described in this Indenture, unless such other indenture is a collateral trust indenture indenture, under which the only collateral consists of Securities of that series; PROVIDED Bonds issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any other series other than that series or any other another indenture or indentures under which other securities, or certificates of interest or participation in other securities, securities of the Corporation, Company are outstanding if (iA) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to the Securities of that series and such other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures, or (iiB) the Corporation Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of one or more series or under one of such indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series issued under this Indenture bonds or an underwriter for the CorporationCompany;
(3) the Trustee Trustee, directly or indirectly indirectly, controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation Company or an underwriter for the CorporationCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the CorporationCompany, or of an underwriter (other than the Trustee itself) for the Corporation Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the Corporation, but may not be at the same time an executive officer of both the Trustee and the Corporation; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or an executive officer of the Trustee and a director of the Corporation; and (C) the Trustee may be designated by the Corporation Company or by an any underwriter for the Corporation Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, agent or depositary, depositary or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (cd), to act as trustee trustee, whether under an indenture or otherwise;
(5) ten percent per centum or more of the voting securities of the Trustee is beneficially owned either by the Corporation Company or by any director, partner, partner or executive officer thereof, or twenty percent per centum or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or ten percent per centum or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation Company or by any director, partner, partner or executive officer thereof, or is beneficially owned, owned collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as a collateral security for for, an obligation which is in default, (A) five percent per centum or more of the voting securities, securities or ten percent per centum or more of any other class of security, security of the CorporationCompany, not including the Securities of any series with respect to which the Trustee is acting as such Bonds issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten percent per centum or more of any class of security of an underwriter for the CorporationCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for for, an obligation which is in default, five percent per centum or more of the voting securities of any a person who, to the knowledge of the Trustee, owns ten percent per centum or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with with, the CorporationCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, ten percent per centum or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty percent per centum or more of the voting securities of the CorporationCompany; or
(9) the Trustee owns owns, on May 15 15th in any calendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent per centum or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs paragraph (6), (7), or (8) of this subsection (cd). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, apply for a period of two years from the date of such acquisition, acquisition to the extent that such securities included in such estate do not exceed twenty-five percent per centum of such voting securities or twenty-five percent per centum of any such class of security. Promptly after May 15, 15th in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-above mentioned capacities as of such May 1515th. If the Corporation Company fails to make payment in full of principal of (or premium, if any) or interest on any of the Securities Bonds when and as the same shall become due and payable, and such failure continues for thirty days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30thirty-day period andperiod, and after such date, notwithstanding the foregoing provisions of this paragraph (9)paragraph, all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long as such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (cd). The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (cd) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (cd).
Appears in 1 contract
Samples: Indenture (Brooke Corp)
Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest with respect to the Securities of any seriesinterest, as defined in this Section 8.08, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect specified in Section 8.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 with respect to the Securities of any particular series8.08, the Trustee shall, within ten 10 days after the expiration of such 90-90 day period, mail transmit notice of such failure to all holders Holders of Securities of that seriesSecurities, as to the names and addresses of such holders appear upon the registry books of the Corporationextent provided in Section 6.04(c).
(c) For the purposes of this Section 8.08 8.08, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any particular series if:
(1) the Trustee is trustee under this Indenture with respect to the outstanding Securities securities of any series other than that series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Corporation, Company are outstanding, outstanding unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities of that seriesissued under this Indenture; PROVIDED provided, however, that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any other series other than that series or any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Corporation, Company are outstanding if (iA) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of Section section 305 or subsection (c) of Section section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to the Securities of that series and such other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and any such other series or and such other indenture or indentures, or (iiB) the Corporation Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities of that series and such other series or and such other indenture is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of one or more that series or under one of such other series or such indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series issued under this Indenture or an underwriter for the CorporationCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation Company or an underwriter for the CorporationCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the CorporationCompany, or of an underwriter (other than the Trustee itself) for the Corporation Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or or an executive officer of the Trustee and a director and/or or an executive officer of the CorporationCompany, but may not be at the same time an executive officer of both the Trustee and the CorporationCompany; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or or an executive officer of the Trustee and a director of the CorporationCompany; and (C) the Trustee may be designated by the Corporation Company or by an underwriter for the Corporation Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee whether under an indenture or otherwise;
(5) ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by the Corporation Company or by any director, partner, or executive officer thereof, or twenty percent 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation Company or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, (A) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the CorporationCompany, not including the Securities of any series with respect to which the Trustee is acting as such issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten percent 10% or more of any class of security of an underwriter for the CorporationCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, five percent 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with with, the CorporationCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, ten percent 10% or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty percent 50% or more of the voting securities of the CorporationCompany; or
(9) the Trustee owns on May 15 in any calendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent 25% or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs paragraph (6), (7), ) or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, acquisition to the extent that such securities included in such estate do not exceed twenty-five percent 25% of such voting securities or twenty-five percent 25% of any such class of security. Promptly after May 15, in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15. If the Corporation Company fails to make payment in full of principal of (or premium, if any) or interest on any of the Securities when and as the same become becomes due and payable, and such failure continues for thirty 30 days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30-day period and, after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long as such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c). The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c).
Appears in 1 contract
Samples: Indenture (Lyondell Chemical Co)
Conflicting Interest of Trustee. (a) If the Trustee has or -------------------------------- shall acquire any conflicting interest with respect to the Securities of any seriesinterest, as defined in this Section 8.087.08, it shall, within 90 ninety days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect specified in Section 8.107.10.
(b1) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 with respect to the Securities of any particular series7.08, the Trustee shall, within ten days after the expiration of such 90ninety-day period, mail transmit notice of such failure to all holders of Securities of that seriesDebentures, as the names and addresses of such holders appear upon the registry books of the CorporationCompany.
(c2) For the purposes purpose of this Section 8.08 7.08, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any particular series if:
(1) the Trustee is trustee under this Indenture with respect to the outstanding Securities of any other series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Corporation, are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities of that series; PROVIDED that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any other series other than that series or any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, securities of the CorporationCompany, are outstanding if (i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to the Securities of that series and such other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures, or (ii) the Corporation Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of one or more series or under one of such indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series Debentures issued under this Indenture or an underwriter for the CorporationCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation Company or an underwriter for the CorporationCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the CorporationCompany, or of an underwriter (other than the Trustee itself) for the Corporation Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the CorporationCompany, but may not be at the same time an executive officer of both the Trustee and the CorporationCompany; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or an executive officer of the Trustee and a director of the CorporationCompany; and (C) the Trustee may be designated by the Corporation Company or by an underwriter for the Corporation Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee whether under an indenture or otherwise;
(5) ten percent or more of the voting securities of the Trustee is beneficially owned either by the Corporation Company or by any director, partner, or executive officer thereof, or twenty percent or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or ten percent or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation Company or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the CorporationCompany, not including the Securities of any series with respect to which the Trustee is acting as such Debentures issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten percent or more of any class of security of an underwriter for the CorporationCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, five percent or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with with, the CorporationCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, ten percent or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty percent or more of the voting securities of the CorporationCompany; or
(9) the Trustee owns on May 15 in any calendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs paragraph (6), (7), or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five percent of such voting securities or twenty-five percent of any such class of security. Promptly after May 15, in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15. If the Corporation Company fails to make payment in full of principal of (or premium, if any) or interest on any of the Securities Debentures when and as the same become due and payable, and such failure continues for thirty days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-above- mentioned capacities as of the date of the expiration of such 30thirty-day period and, after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long as such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c). The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c).
Appears in 1 contract
Samples: Indenture (Zenith Electronics Corp)
Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest with respect to the Securities of any seriesinterest, as defined in this Section 8.087.08, it shallthen, within 90 ninety days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 7.08(c)) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such ninety-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided in this Section 7.08, resign with respect to the Securities of that series in the manner and with the effect specified in Section 8.107.10, and the Company shall take prompt steps to have a successor appointed in the manner provided in Section 7.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 with respect to the Securities of any particular series7.08, the Trustee shall, within ten days after the expiration of such 90ninety-day period, mail transmit notice of such failure to all holders the noteholders in the manner and to the extent provided in subsection (c) of Securities Section 5.04 with respect to reports pursuant to subsection (a) of that series, as the names and addresses of such holders appear upon the registry books of the CorporationSection 5.04.
(c) For the purposes of this Section 8.08 7.08, the Trustee shall be deemed to have a conflicting interest with respect to if the Securities Notes are in default (defined as the occurrence of any particular series if:event specified in Section 6.01, but exclusive of any period of grace or requirement of notice) and
(1) the Trustee is trustee under this Indenture with respect to the outstanding Securities of any other series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Corporation, Company are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities of that series; PROVIDED Notes issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any other series other than that series or any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Corporation, Company are outstanding if (i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection Subsection (b) of Section 305 or subsection Subsection (c) of Section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to the Securities of that series and such other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures, or (ii) the Corporation Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of one or more series or under one of such indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series issued under this Indenture or an underwriter for the CorporationCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation or an underwriter for the CorporationCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the CorporationCompany, or of an underwriter (other than the Trustee itself) for the Corporation Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the CorporationCompany, but may not be at the same time an executive officer of both the Trustee and the CorporationCompany; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or an executive officer of the Trustee and a director of the CorporationCompany; and (C) the Trustee may be designated by the Corporation Company or by an any underwriter for the Corporation Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee whether under an indenture or otherwise;
(5) ten percent or more of the voting securities of the Trustee is beneficially owned either by the Corporation Company or by any director, partner, or executive officer thereof, or twenty 20 percent or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or ten 10 percent or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation Company or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, (A) five percent or more of the voting securities, or ten 10 percent or more of any other class of security, of the CorporationCompany, not including the Securities of any series with respect to which the Trustee is acting as such Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten 10 percent or more of any class of security of an underwriter for the CorporationCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, five percent or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten 10 percent or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with with, the CorporationCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, ten 10 percent or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty 50 percent or more of the voting securities of the Corporation; orCompany;
(9) the Trustee owns on May 15 the date of default upon the Notes (defined as the occurrence of any event specified in Section 6.01, but exclusive of any calendar yearperiod of grace or requirement of notice) or any anniversary of such default while such default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or ----- ----- in any other similar capacity, an aggregate of twenty-five percent 25 per cent or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs paragraph (6), (7), or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five 25 percent of such voting securities or twenty-five 25 percent of any such class of security. Promptly after May 15, the dates of any such default upon the Notes and annually in each calendar yearsucceeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15dates. If the Corporation Company fails to make payment in full of principal of (or of, premium, if any) , Change of Control Purchase Price, Asset Sale Purchase Price or interest on any of the Securities Notes when and as the same become becomes due and payable, payable and such failure continues for thirty 30 days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30-day period andperiod, and after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long as such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c); or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act of 1939, the Trustee shall become a creditor of the Company. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes purpose of paragraph (3) or (7) of this subsection (c).
Appears in 1 contract
Samples: Indenture (Kaiser Aluminum Corp)
Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest with respect to the Securities of any seriesinterest, as defined in this Section 8.08Section, it shall, within 90 days after ascertaining that it has such conflicting interest, and if an Event of Default as defined in subsection (c) of this Section to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect specified in Section 8.107.10.
(b1) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 with respect to the Securities of any particular seriesSection, the Trustee shall, within ten 10 days after the expiration of such 90-day period, mail transmit notice of such failure in the manner and to the extent set forth in Section 5.04(c), to all holders noteholders of Securities the series affected by the conflicting interest.
(2) Subject to the provisions of that seriesSection 6.14, unless the Trustee's duty to resign is stayed as provided below in this Section, any noteholder who has been a bona fide holder of Notes of any series affected by the names conflicting interest for at least six months may, on behalf of himself and addresses all others similarly situated, petition any court of competent jurisdiction for the removal of such holders appear upon Trustee, and the registry books appointment of a successor, if such Trustee fails, after written request thereof by such holder to comply with the Corporationprovisions of subsection (a) of this Section.
(c) For the purposes of this Section 8.08 the Trustee shall be deemed to have a conflicting interest with respect to Notes of a particular series if a default (under the Securities terms of this Indenture, but exclusive of any particular series ifperiod of grace or requirement of notice) has occurred with respect to such Notes, and:
(1) the Trustee is trustee under this Indenture with respect to the outstanding Securities Outstanding Notes of any other series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Corporation, Company are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities of that seriesNotes issued under this Indenture; PROVIDED provided, however, that there shall be excluded from the operation of this paragraph paragraph, (A) this Indenture with respect to the Securities Notes of any other series other than that series or series, and (B) any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Corporation, Company are outstanding if if:
(i) this Indenture and is, and, if applicable, such other indenture or indentures are are, wholly unsecured and rank equally, and such other indenture or indentures are hereafter qualified under the Trust Indenture Act Act, as in effect at the time of 1939such qualification, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to the Securities of that such particular series and such (A) one or more other series in this Indenture or (B) the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that such particular series and such other series or such other indenture or indentures, or or
(ii) the Corporation Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities of that such particular series and such other series or under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of one or more such particular series and such other series or under one of this Indenture and such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series issued under this Indenture or an underwriter for the CorporationCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation or an underwriter for the CorporationCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the CorporationCompany, or of an 42 49 underwriter (other than the Trustee itself) for the Corporation Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or or an executive officer or both of the Trustee and a director and/or or an executive officer or both of the CorporationCompany, but may not be at the same time an executive officer of both the Trustee and the CorporationCompany; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or or an executive officer or both of the Trustee and a director of the CorporationCompany; and (C) the Trustee may be designated by the Corporation Company or by an any underwriter for the Corporation Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee trustee, whether under an indenture or otherwise;
(5) ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by the Corporation Company or by any director, partner, or executive officer thereof, or twenty percent 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; , or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation Company or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in defaultdefault as hereinafter described in this subsection, (A) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the CorporationCompany, not including the Securities of any series with respect to which the Trustee is acting as such Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten percent 10% or more of any class of security of an underwriter for the CorporationCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in defaultdefault as hereinafter described in this subsection, five percent 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with with, the CorporationCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in defaultdefault as hereinafter described in this subsection, ten percent 10% or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty percent 50% or more of the voting securities of the CorporationCompany; or
(9) the Trustee owns on May 15 the date of default of the Notes as defined in subsection (c) of this Section or any calendar yearanniversary of such default while such default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs (6), (7), or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five percent of such voting securities or twenty-five percent of any such class of security. Promptly after May 15, in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15. If the Corporation fails to make payment in full of principal of (or premium, if any) or interest on any of the Securities when and as the same become due and payable, and such failure continues for thirty days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30-day period and, after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c). The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c).
Appears in 1 contract
Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest with respect to the Securities of any seriesinterest, as defined in this Section 8.08, it shall, within 90 ninety days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect specified in Section 8.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 with respect to the Securities of any particular series8.08, the Trustee shall, within ten days after the expiration of such 90ninety-day period, mail transmit notice of such failure to all holders of Securities of that seriesDebentures, as the names and addresses of such holders appear upon the registry books of the CorporationCompany.
(c) For the purposes purpose of this Section 8.08 8.08, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any particular series if:
(1) the Trustee is trustee under this Indenture with respect to the outstanding Securities of any other series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Corporation, Company are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities of that seriesDebentures issued under this Indenture; PROVIDED provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any other series other than that series or any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, securities of the CorporationCompany, are outstanding if (i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to the Securities of that series and such other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures, or (ii) the Corporation Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of one or more series or under one of such indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series Debentures issued under this Indenture or an underwriter for the CorporationCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation Company or an underwriter for the CorporationCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the CorporationCompany, or of an underwriter (other than the Trustee itself) for the Corporation Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the CorporationCompany, but may not be at the same time an executive officer of both the Trustee and the CorporationCompany; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or an executive officer of the Trustee and a director of the CorporationCompany; and (C) the Trustee may be designated by the Corporation Company or by an underwriter for the Corporation Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee whether under an indenture or otherwise;
(5) ten percent or more of the voting securities of the Trustee is beneficially owned either by the Corporation Company or by any director, partner, or executive officer thereof, or twenty percent or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or ten percent or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation Company or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the CorporationCompany, not including the Securities of any series with respect to which the Trustee is acting as such Debentures issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten percent or more of any class of security of an underwriter for the CorporationCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, five percent or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with the Corporation;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, ten percent or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty percent or more of the voting securities of the Corporation; or
(9) the Trustee owns on May 15 in any calendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs (6), (7), or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five percent of such voting securities or twenty-five percent of any such class of security. Promptly after May 15, in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15. If the Corporation fails to make payment in full of principal of (or premium, if any) or interest on any of the Securities when and as the same become due and payable, and such failure continues for thirty days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30-day period and, after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c). The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c).
Appears in 1 contract
Samples: Indenture (SCS Transportation Inc)
Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest with respect to the Securities of any seriesinterest, as defined in this Section 8.087.08, it shall, within 90 ninety days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect specified in Section 8.107.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 with respect to the Securities of any particular series7.08, the Trustee shall, within ten days after the expiration of such 90ninety-day period, mail transmit notice of such failure to all holders of Securities of that seriesDebentures, as the names and addresses of such holders appear upon the registry books of the CorporationCompany.
(c) For the purposes purpose of this Section 8.08 7.08, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any particular series if:
(1) the Trustee is trustee under this Indenture with respect to the outstanding Securities of any other series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the CorporationCompany, are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities of that seriesDebentures issued under this Indenture; PROVIDED provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any other series other than that series or any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, securities of the CorporationCompany, are outstanding if (i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to the Securities of that series and such other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures, or (ii) the Corporation Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of one or more series or under one of such indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series Debentures issued under this Indenture or an underwriter for the CorporationCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation Company or an underwriter for the CorporationCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the CorporationCompany, or of an underwriter (other than the Trustee itself) for the Corporation Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the CorporationCompany, but may not be at the same time an executive officer of both the Trustee and the CorporationCompany; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or an executive officer of the Trustee and a director of the CorporationCompany; and (C) the Trustee may be designated by the Corporation Company or by an underwriter for the Corporation Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee whether under an indenture or otherwise;
(5) ten percent or more of the voting securities of the Trustee is beneficially owned either by the Corporation Company or by any director, partner, or executive officer thereof, or twenty percent or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or ten percent or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation Company or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the CorporationCompany, not including the Securities of any series with respect to which the Trustee is acting as such Debentures issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten percent or more of any class of security of an underwriter for the CorporationCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, five percent or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with with, the CorporationCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, ten percent or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty percent or more of the voting securities of the CorporationCompany; or
(9) the Trustee owns on May 15 in any calendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs paragraph (6), (7), or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five percent of such voting securities or twenty-five percent of any such class of security. Promptly after May 15, in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15. If the Corporation Company fails to make payment in full of principal of (or premium, if any) or interest on any of the Securities Debentures when and as the same become due and payable, and such failure continues for thirty days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-above- mentioned capacities as of the date of the expiration of such 30thirty-day period and, after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long as such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c). The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c).
Appears in 1 contract
Samples: Indenture (Zenith Electronics Corp)
Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest with respect to the Securities of any seriesinterest, as defined in this Section 8.086.08, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect specified in Section 8.106.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 with respect to the Securities of any particular series6.08, the Trustee shall, within ten 10 days after the expiration of such 90-day period, mail transmit notice of such failure to all holders of Securities of that seriesSecurities, as the names and addresses of such holders appear upon the registry books of the CorporationSecurities register.
(c) For the purposes of this Section 8.08 6.08 the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any particular series if:
(1) the Trustee is trustee under this Indenture with respect to the outstanding Securities of any other series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Corporation, Company or other obligor on the Securities of such series (each of which is hereafter in this Section called a "Security party") are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities of that seriesissued under this Indenture; PROVIDED provided that there shall be excluded from the operation of this paragraph paragraph, this Indenture with respect to the Securities of any other series other than that series or and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Corporation, a Security party are outstanding if (i) this Indenture is and, if applicable, this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to the Securities of that such series and such one or more other series or or, if applicable, this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures, or (ii) the Corporation Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities of that such series and one or more other series or, if applicable, this Indenture and such other series indenture or such other indenture indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of such series and one or more other series or under or, if applicable, this Indenture and one of such indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series issued under this Indenture or an underwriter for the Corporationa Security party;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation a Security party or an underwriter for the Corporationa Security party;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the Corporationa Security party, or of an underwriter (other than the Trustee itself) for the Corporation a Security party who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the Corporationa Security party, but may not be at the same time an executive officer of both the Trustee and the Corporationa Security party; (B) if and so long as the number of directors of the Trustee in office is more than nine9, one additional individual may be a director and/or an executive officer of the Trustee and a director of the Corporationa Security party; and (C) the Trustee may be designated by the Corporation a Security party or by an underwriter for the Corporation a Debenture party to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee whether under an indenture or otherwise;
(5) ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by the Corporation a Security party or by any director, partner, or executive officer thereof, or twenty percent 20% or more of such voting securities is beneficially owned, collectively, by any two 2 or more of such persons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation a Security party or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two 2 or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, (A) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Corporationa Security party, not including the Securities of any series with respect to which the Trustee is acting as such issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten percent 10% or more of any class of security of an underwriter for the Corporationa Security party;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, five percent 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with the Corporationwith, a Security party;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, ten percent 10% or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty percent 50% or more of the voting securities of the Corporationa Security party; or
(9) the Trustee owns on May 15 in any calendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent 25% or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs paragraph (6), (7), or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two 2 years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five percent 25% of such voting securities or twenty-five percent of 25% of any such class of security. Promptly after May 15, in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15. If the Corporation Company fails to make payment in full of principal of (or premium, if any) or interest on any of the Securities when and as the same become due and payable, and such failure continues for thirty 30 days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30-day period and, after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long as such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) ), and (8) of this subsection (c). The specifications of percentages in paragraphs (5) to (9), inclusive, inclusive of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c).
Appears in 1 contract
Samples: Indenture (Phillips Petroleum Co)
Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest with respect to the Securities of any seriesinterest, as defined in this Section 8.08Section, it shallwith respect to the Debentures of any series and if the Default to which such conflicting interest relates has not been cured, duly waived or otherwise eliminated, within 90 days after ascertaining that it has such conflicting interest, it shall either eliminate such conflicting interest interest, except as otherwise provided herein, or resign with respect to the Securities Debentures of that series in the manner and with the effect specified in Section 8.107.10 and the Company shall promptly appoint a successor Trustee in the manner provided herein.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 Section, with respect to the Securities Debentures of any particular series, series the Trustee shall, within ten days after the expiration of such 90-day period, mail transmit notice of such failure by mail, first class postage prepaid, to all holders of Securities the Holders of that series, series as the their names and addresses of such holders appear upon the registry books of the Corporationregistration books.
(c) For the purposes of this Section 8.08 the Trustee shall be deemed to have a conflicting interest with respect to the Securities Debentures of any particular series ifif a Default has occurred and is continuing and:
(1i) the Trustee is trustee under this Indenture with respect to the outstanding Securities Debentures of any series other series than that series, or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Corporation, Company are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities of that seriesDebentures issued under this Indenture; PROVIDED provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities Debentures of any other series other than that series or and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Corporation, Company are outstanding if (i) this Indenture and such other indenture or indentures and all series of securities issuable thereunder are wholly unsecured and rank equally and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture Act of 1939Act, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust Indenture Act of 1939 Act, that differences exist between (A) the provisions of this Indenture with respect to the Securities Debentures of that series and such with respect to one or more other series or (B) the provisions of this Indenture and the provisions of such other indenture or indentures (or such series), which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities Debentures of that series and such other series or such other indenture or indentures, or (ii) the Corporation Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities Debentures of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities Debentures of one or more that series and such other series or under one of such other indentures;
(2ii) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series issued under this Indenture or an underwriter for the CorporationCompany or the Guarantor;
(3iii) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation or an underwriter for the CorporationCompany or the Guarantor;
(4iv) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, appointee or representative of the CorporationCompany, or of an underwriter (other than the Trustee itself) for the Corporation Company or the Guarantor who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the CorporationCompany or the Guarantor, but may not be at the same time an executive officer of both the Trustee and the CorporationCompany or the Guarantor; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or an executive officer of the Trustee and a director of the CorporationCompany or the Guarantor; and (C) the Trustee may be designated by the Corporation Company or the Guarantor or by an underwriter for the Corporation Company or the Guarantor to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositarydepository, or in any other similar capacity, or, subject to the provisions of paragraph (1i) of this subsection (c), to act as trustee whether under an indenture or otherwise;
(5v) ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by the Corporation Company or the Guarantor or by any director, partner, or executive officer thereof, or twenty percent 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation Company or the Guarantor or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, collectively by any two or more such persons;; 47 56
(6vi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in defaultdefault (as hereinafter in this subsection (c) defined), (A) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the CorporationCompany or the Guarantor, not including the Securities of any series with respect to which the Trustee is acting as such Debentures issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten percent 10% or more of any class of security of an underwriter for the CorporationCompany or the Guarantor;
(7vii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in defaultdefault (as hereinafter in this subsection (c) defined), five percent 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with with, the CorporationCompany or the Guarantor;
(8) viii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in defaultdefault (as hereinafter in this subsection (c) defined), ten percent 10% or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty percent 50% or more of the voting securities of the Corporation; orCompany or the Guarantor;
(9ix) the Trustee owns owns, on May 15 in the date of Default upon the Debentures of any calendar yearseries or any anniversary of such Default while such Default upon the Debentures issued under this Indenture remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent 25% or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting conflict interest under paragraphs paragraph (6vi), (7vii), or (8) viii) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included includes them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five percent 25% of such voting securities or twenty-five percent 25% of any such class of security. Promptly after May 15, the dates of any such Default upon the Debentures issued under this Indenture and annually in each calendar yearsucceeding year that the Debentures issued under this Indenture remain in Default, the Trustee shall make a check of its holdings holding of such securities in any of the above-mentioned capacities as of such May 15dates. If the Corporation Company fails to make payment in full of principal of (or premium, if any) or interest on any of the Securities Debentures when and as the same become becomes due and payable, and such failure continues for thirty days thereafter, payable or the Trustee shall Guarantor fails to make a prompt check payment in full of its holdings amounts under the Guarantee with regard to principal of such securities in or interest on any of the above-mentioned capacities Debentures, when and as of the date of the expiration of such 30-day period and, after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c). The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c).same
Appears in 1 contract
Samples: Indenture (Aetna Capital Trust Iv)
Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest with respect to the Securities of any seriesinterest, as defined in this Section 8.08, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect specified in Section 8.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointment, and the Company shall take prompt steps to have a successor appointed in the manner provided in Section 8.10.
(b) In the event that If the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08 with respect to the Securities of any particular series, 8.08; the Trustee shall, within ten 10 days after the expiration of such 90-90 day period, mail transmit notice of such failure to all holders the Debentureholders in the manner and to the extent provided in subsection (C) of Securities of that series, as the names and addresses of such holders appear upon the registry books of the CorporationSection 6.04.
(c) For the purposes of this Section 8.08 the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any particular series if:
(1i) the The Trustee is trustee under this Indenture with respect to the outstanding Securities of any other series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the CorporationCompany, are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities of that series; PROVIDED Debentures issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any other series other than that series or any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, securities of the Corporation, Company are outstanding if (iA) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to the Securities of that series and such other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures, or (iiB) the Corporation Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to the Securities of that series and such other series indenture or such other indenture indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of one or more series or under one of such indentures;
(2ii) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series issued under this Indenture Debentures or an underwriter for the CorporationCompany;
(3iii) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Corporation Company or an underwriter for the CorporationCompany;
(4iv) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the CorporationCompany, or of an underwriter (other than the Trustee itself) for the Corporation Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the CorporationCompany, but may not be at the same time an executive officer of both the Trustee and the CorporationCompany; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or an executive officer of the Trustee and a director of the CorporationCompany; and (C) the Trustee may be designated by the Corporation Company or by an any underwriter for the Corporation Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, subject to or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1i) of this subsection (c), ) to act as trustee whether under an indenture or otherwise;
(5v) ten 10 percent or more of the voting securities of the Trustee is beneficially owned either by the Corporation Company or by any director, partner, partner or executive officer thereof, or twenty 20 percent or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or ten 10 percent or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Corporation Company or by any director, partner, partner or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons;
(6vi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in defaultdefault (as hereinafter in this subsection (c) defined), (A) five 5 percent or more of the voting securities, or ten 10 percent or more of any other class of security, of the CorporationCompany, not including the Securities of any series with respect to which the Trustee is acting as such Debentures issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten 10 percent or more of any class of security of an underwriter for the CorporationCompany;
(7vii) the Trustee is the beneficial owner of, or holds as collateral security, for an obligation which is in default (as hereinafter in this subsection (c) defined), 5 percent or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10 percent or more of the voting securities of, or controls directly or indirectly, or is under direct or indirect common control with, the Company;
(viii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in defaultdefault (as hereinafter in this subsection (c) defined), five percent or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with the Corporation;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, ten 10 percent or more of any class of security of any person who, to to. the knowledge of the Trustee, owns fifty 50 percent or more of the voting securities of the CorporationCompany; or
(9ix) the Trustee owns on May 15 in any calendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five 25 percent or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraphs paragraph (6vi), (7vii), or (8) viii) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five 25 percent of such voting securities or twenty-five 25 percent of any such class of security. Promptly after May 15, in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15. If the Corporation fails to make payment in full of principal of (or premium, if any) or interest on any of the Securities when and as the same become due and payable, and such failure continues for thirty days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30-day period and, after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c). The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c).the
Appears in 1 contract
Samples: Indenture (Philip Services Corp)
