Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.08, resign in the manner and with the effect specified in Section 7.10, 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 appoint a successor in accordance with Section 7.10. (b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 7.08, the Trustee shall, within ten days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04. (c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's duty to resign is stayed as provided in subsection (f) of this Section 7.08, any Holder who has been a bona fide Holder of Subordinated Securities for at least six months may, on such Holder's behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.08. (d) For the purposes of this Section 7.08 the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred with respect to Subordinated Securities of such series and: (1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securities, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture, provided that there shall be excluded from the operation of this paragraph, this Subordinated Indenture with respect to the Subordinated Securities of any other series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if (A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture Act, unless the 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, that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such series and one or more other series, or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and such other indenture or indentures, or (B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and one of such indentures; (2) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated Securities; (3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated Securities; (4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated Securities, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities 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 Company or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated Securities; (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 Company or any other obligor on the Subordinated Securities; and (C) the Trustee may be designated by the Company or any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d), 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% 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 Company or any other obligor on the Subordinated Securities 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, as hereinafter defined, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated 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 Company or any other obligor on the Subordinated Securities; (7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter 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 Company or any other obligor on the Subordinated Securities; (8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter defined, ten percent or more of any class of security of any Person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated Securities; (9) the Trustee owns on the date of the occurrence of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of 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 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 paragraph (6), (7) or (8) of this subsection (d). 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence of any such Event of Default and annually in each succeeding year that the Subordinated Securities or any series thereof 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 date. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of principal of or interest on any of the Subordinated Securities when and as the same become due and payable and such failure continues for 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 (d); or (10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d).
Appears in 5 contracts
Samples: Subordinated Indenture (Handspring Inc), Subordinated Indenture (Lexar Media Inc), Subordinated Indenture (Flextronics International LTD)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.08, resign in the manner and with the effect specified in Section 7.10, 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 appoint a successor in accordance with Section 7.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 7.08, the Trustee shall, within ten days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's duty to resign is stayed as provided in subsection (f) of this Section 7.08, any Holder who has been a bona fide Holder of Subordinated Securities for at least six months may, on such Holder's behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred with respect to Subordinated Securities of such series and:
(1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securities, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture, provided that there shall be excluded from the operation of this paragraph, this Subordinated Indenture with respect to the Subordinated Securities of any other series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if (A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture Act, unless the 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, that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such series and one or more other series, or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and such other indenture or indentures, or (B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and one of such indentures;
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated Securities;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated Securities;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated Securities, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities 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 Company or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated Securities; (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 Company or any other obligor on the Subordinated Securities; and (C) the Trustee may be designated by the Company or any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d), 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% 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 Company or any other obligor on the Subordinated Securities 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, as hereinafter defined, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated 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 Company or any other obligor on the Subordinated Securities;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter 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 Company or any other obligor on the Subordinated Securities;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter defined, ten percent or more of any class of security of any Person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated Securities;; or
(9) the Trustee owns on the date of the occurrence of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of 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 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 paragraph (6), (7) or (8) of this subsection (d). 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence of any such Event of Default and annually in each succeeding year that the Subordinated Securities or any series thereof 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 date. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of principal of or interest on any of the Subordinated Securities when and as the same become due and payable and such failure continues for 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 (d); or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d).
Appears in 5 contracts
Samples: Senior Indenture (Handspring Inc), Senior Indenture (Lexar Media Inc), Senior Indenture (Transmeta Corp)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08Section, it shallwith respect to the Securities of any series:
(i) then, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided below in this Section 7.08Section, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointmentresign, and the Company shall take prompt steps to appoint have a successor appointed in accordance with the manner provided in Section 7.10.6.10;
(bii) In in the event that the Trustee shall fail to comply with the provisions of subsection Clause (ai) of this Section 7.08Subsection, the Trustee shall, within ten 10 days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders Holders of the Securities of the applicable series in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.7.3(c); and
(ciii) Subject subject to the provisions of Section 6.11 of this Subordinated Indenture5.14, unless the Trustee's ’s duty to resign is stayed as provided below in subsection (f) of this Section 7.08Section, any Holder of the Securities of the applicable series who has been a bona fide Holder of Subordinated such Securities for at least six months may, on such Holder's behalf and on behalf of himself and all other Holders others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee the Trustee, and the appointment of a successor, if such the Trustee fails fails, after written request thereof by such Holder Xxxxxx to comply with the provisions of subsection Clause (ai) of this Section 7.08Subsection.
(db) For the purposes of this Section 7.08 the Section, a Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred exists with respect to Subordinated the Securities of such the applicable series and:
(1i) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than the applicable series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securitiesoutstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture; provided, provided however, that there shall be excluded from the operation of this paragraph, paragraph this Subordinated Indenture with respect to the Subordinated Securities of any series other than the applicable series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if if
(A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank ranks equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActAct of 1939, unless the Commission shall have found and declared by order pursuant to subsection (bSection 305(b) of or Section 305 or subsection (c307(c) of Section 307 of the Trust Indenture Act, Act of 1939 that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such the applicable series and one or more other series, series or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture or indentures, or or
(B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture, 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 Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and one of such other indenture or indentures;
(2ii) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(3iii) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(4iv) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated SecuritiesCompany, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities who is currently engaged in the business of underwriting, except that (Ai) one individual may be a director and/or or an executive officer officer, or both, of the Trustee and a director and/or or an executive officer officer, or both, of the Company or any other obligor on the Subordinated SecuritiesCompany, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated SecuritiesCompany; (Bii) 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 officer, or both, of the Trustee and a director of the Company or any other obligor on the Subordinated SecuritiesCompany; and (Ciii) the Trustee may be designated by the Company or by any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d)Subsection, to act as trustee 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such Personspersons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, or is beneficially owned, collectively, by any two or more such Personspersons;
(6vi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), (Ai) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (Bii) ten percent 10% or more of any class of security of an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(7vii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), five percent 5% or more of the voting securities of any Person 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 Company or any other obligor on the Subordinated SecuritiesCompany;
(8) viii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), ten percent 10% or more of any class of security of any Person person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated SecuritiesCompany;
(9ix) the Trustee owns owns, on the date of an Event of Default with respect to the occurrence Securities of the applicable series or any anniversary of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity capacity, an aggregate of 25% or more of the voting securities securities, or of any class of security, of any Personperson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (d)Subsection. 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence dates of any such Event of Default with respect to the Securities of the applicable series and annually in each succeeding year that the Subordinated Securities or any series thereof remain in defaultsuch Event of Default remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datedates. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of the principal of (or premium, if any, on) or interest on any of the Subordinated Securities when and as the same become becomes due and payable payable, and such failure continues for 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)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 (d)Subsection; or
(10x) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b6.13(b), the Trustee shall be or become a creditor of the Company Company. For purposes of paragraph (i) of this Subsection, and of Sections 5.12 and 5.13, the term “series of securities” and “series” means a series, class or group of securities issuable under an indenture pursuant to whose terms holders of one such series may vote to direct the indenture trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another such series; provided, however, that “series of securities” or “series” shall not include any other obligor on the Subordinated Securitiesseries of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specifications specification of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) Subsection shall not be construed as indicating that the ownership of such percentages of the securities of a Person 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 (d)Subsection.
Appears in 5 contracts
Samples: Indenture (Carnival PLC), Indenture (Carnival PLC), Indenture (Carnival PLC)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08Section, it shallwith respect to the Securities of any series:
(i) then, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided below in this Section 7.08Section, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointmentresign, and the Company shall take prompt steps to appoint have a successor appointed in accordance with the manner provided in Section 7.10.6.10;
(bii) In in the event that the Trustee shall fail to comply with the provisions of subsection Clause (ai) of this Section 7.08Subsection, the Trustee shall, within ten 10 days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders Holders of the Securities of the applicable series in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.7.3(c); and
(ciii) Subject subject to the provisions of Section 6.11 of this Subordinated Indenture5.14, unless the Trustee's ’s duty to resign is stayed as provided below in subsection (f) of this Section 7.08Section, any Holder of the Securities of the applicable series who has been a bona fide Holder of Subordinated such Securities for at least six months may, on such Holder's behalf and on behalf of himself and all other Holders others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee the Trustee, and the appointment of a successor, if such the Trustee fails fails, after written request thereof by such Holder Xxxxxx to comply with the provisions of subsection Clause (ai) of this Section 7.08Subsection.
(db) For the purposes of this Section 7.08 the Section, a Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred exists with respect to Subordinated the Securities of such the applicable series and:
(1i) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than the applicable series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securitiesoutstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture; provided, provided however, that there shall be excluded from the operation of this paragraph, paragraph this Subordinated Indenture with respect to the Subordinated Securities of any series other than the applicable series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if if
(A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank ranks equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to subsection (bSection 305(b) of or Section 305 or subsection (c307(c) of Section 307 of the Trust Indenture Act, Act that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such the applicable series and one or more other series, series or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture or indentures, or or
(B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture, 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 Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and one of such other indenture or indentures;
(2ii) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(3iii) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(4iv) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated SecuritiesCompany, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities who is currently engaged in the business of underwriting, except that (Ai) one individual may be a director and/or or an executive officer officer, or both, of the Trustee and a director and/or or an executive officer officer, or both, of the Company or any other obligor on the Subordinated SecuritiesCompany, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated SecuritiesCompany; (Bii) 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 officer, or both, of the Trustee and a director of the Company or any other obligor on the Subordinated SecuritiesCompany; and (Ciii) the Trustee may be designated by the Company or by any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d)Subsection, to act as trustee 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such Personspersons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, or is beneficially owned, collectively, by any two or more such Personspersons;
(6vi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), (Ai) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (Bii) ten percent 10% or more of any class of security of an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(7vii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), five percent 5% or more of the voting securities of any Person 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 Company or any other obligor on the Subordinated SecuritiesCompany;
(8) viii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), ten percent 10% or more of any class of security of any Person person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated SecuritiesCompany;
(9ix) the Trustee owns owns, on the date of an Event of Default with respect to the occurrence Securities of the applicable series or any anniversary of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity capacity, an aggregate of 25% or more of the voting securities securities, or of any class of security, of any Personperson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (d)Subsection. 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence dates of any such Event of Default with respect to the Securities of the applicable series and annually in each succeeding year that the Subordinated Securities or any series thereof remain in defaultsuch Event of Default remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datedates. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of the principal of (or premium, if any, on) or interest on any of the Subordinated Securities when and as the same become becomes due and payable payable, and such failure continues for 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)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 (d)Subsection; or
(10x) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b6.13(b), the Trustee shall be or become a creditor of the Company Company. For purposes of paragraph (i) of this Subsection, and of Sections 5.12 and 5.13, the term “series of securities” and “series” means a series, class or group of securities issuable under an indenture pursuant to whose terms holders of one such series may vote to direct the indenture trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another such series; provided, however, that “series of securities” or “series” shall not include any other obligor on the Subordinated Securitiesseries of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specifications specification of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) Subsection shall not be construed as indicating that the ownership of such percentages of the securities of a Person 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 (d)Subsection.
Appears in 4 contracts
Samples: Indenture (Carnival PLC), Indenture (Carnival PLC), Indenture (Carnival PLC)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08Section, it shallwith respect to the Securities of any series:
(i) then, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided below in this Section 7.08Section, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointmentresign, and the Company shall take prompt steps to appoint have a successor appointed in accordance with the manner provided in Section 7.10.6.10;
(bii) In in the event that the Trustee shall fail to comply with the provisions of subsection clause (ai) of this Section 7.08Subsection, the Trustee shall, within ten 10 days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders Holders of the Securities of the applicable series in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.7.3(c); and
(ciii) Subject subject to the provisions of Section 6.11 of this Subordinated Indenture5.14, unless the Trustee's ’s duty to resign is stayed as provided below in subsection (f) of this Section 7.08Section, any Holder of the Securities of the applicable series who has been a bona fide Holder of Subordinated such Securities for at least six months may, on such Holder's behalf and on behalf of himself and all other Holders others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee the Trustee, and the appointment of a successor, if such the Trustee fails fails, after written request thereof by such Holder Xxxxxx to comply with the provisions of subsection clause (ai) of this Section 7.08Subsection.
(db) For the purposes of this Section 7.08 the Section, a Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred exists with respect to Subordinated the Securities of such the applicable series and:
(1i) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than the applicable series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securitiesoutstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture; provided, provided however, that there shall be excluded from the operation of this paragraph, paragraph this Subordinated Indenture with respect to the Subordinated Securities of any series other than the applicable series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if if
(A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank ranks equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActAct of 1939, unless the Commission shall have found and declared by order pursuant to subsection (bSection 305(b) of or Section 305 or subsection (c307(c) of Section 307 of the Trust Indenture Act, Act of 1939 that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such the applicable series and one or more other series, series or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture or indentures, or or
(B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture, 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 Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and one of such other indenture or indentures;
(2ii) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(3iii) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(4iv) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated SecuritiesCompany, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities who is currently engaged in the business of underwriting, except that (Ai) one individual may be a director and/or or an executive officer officer, or both, of the Trustee and a director and/or or an executive officer officer, or both, of the Company or any other obligor on the Subordinated SecuritiesCompany, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated SecuritiesCompany; (Bii) 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 officer, or both, of the Trustee and a director of the Company or any other obligor on the Subordinated SecuritiesCompany; and (Ciii) the Trustee may be designated by the Company or by any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d)Subsection, to act as trustee 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such Personspersons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, or is beneficially owned, collectively, by any two or more such Personspersons;
(6vi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), (Ai) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (Bii) ten percent 10% or more of any class of security of an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(7vii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), five percent 5% or more of the voting securities of any Person 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 Company or any other obligor on the Subordinated SecuritiesCompany;
(8) viii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), ten percent 10% or more of any class of security of any Person person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated SecuritiesCompany;
(9ix) the Trustee owns owns, on the date of an Event of Default with respect to the occurrence Securities of the applicable series or any anniversary of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity capacity, an aggregate of 25% or more of the voting securities securities, or of any class of security, of any Personperson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (d)Subsection. 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence dates of any such Event of Default with respect to the Securities of the applicable series and annually in each succeeding year that the Subordinated Securities or any series thereof remain in defaultsuch Event of Default remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datedates. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of the principal of (or premium, if any, on) or interest on any of the Subordinated Securities when and as the same become becomes due and payable payable, and such failure continues for 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)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 (d)Subsection; or
(10x) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b6.13(b), the Trustee shall be or become a creditor of the Company Company. For purposes of paragraph (i) of this Subsection, and of Sections 5.12 and 5.13, the term “series of securities” and “series” means a series, class or group of securities issuable under an indenture pursuant to whose terms holders of one such series may vote to direct the indenture trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another such series; provided, however, that “series of securities” or “series” shall not include any other obligor on the Subordinated Securitiesseries of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specifications specification of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) Subsection shall not be construed as indicating that the ownership of such percentages of the securities of a Person 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 (d)Subsection.
Appears in 3 contracts
Samples: Indenture (Carnival PLC), Indenture (Carnival PLC), Indenture (Carnival Corp)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08Section, with respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.08, or resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in Section 7.10, 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 appoint a successor in accordance with Section 7.10this Article.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection Subsection (a) of this Section 7.08with respect to the Securities of any series, the Trustee shall, within ten days after the expiration of such 90-day period, transmit by mail to the Company and all Holders of Securities of that series, as their names and addresses appear in the Security Register, notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04failure.
(c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's duty to resign is stayed as provided in subsection (f) of this Section 7.08, any Holder who has been a bona fide Holder of Subordinated Securities for at least six months may, on such Holder's behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 Section, the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event the Securities of Default such series are in default (as determined in accordance with the provisions of Section 501, but exclusive of any period of grace or ----------- requirement of notice) has occurred with respect to Subordinated Securities of such series and:
(1) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than that series or is trustee under another indenture under which any other securities, securities or certificates of interest or participation in any other securities, securities of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securitiesoutstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture, provided that there shall be excluded from the operation of this paragraph, this Subordinated Indenture with respect to the Subordinated Securities of any other series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if (A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture Act, unless the 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, that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such series and one or more other series, or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and such other indenture or indentures, or (B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and one of such indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company or any other obligor on upon the Subordinated Securities;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Company or an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee appointee, or representative of the Company or any other obligor on the Subordinated SecuritiesCompany, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities who is currently engaged in the business of underwriting, except that (Ai) one individual may be a director and/or or an executive officer officer, or both, of the Trustee and a director and/or or an executive officer officer, or both, of the Company or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated SecuritiesCompany; (Bii) 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 officer, or both, of the Trustee and a director of the Company or any other obligor on the Subordinated SecuritiesCompany; and (Ciii) the Trustee may be designated by the Company or by any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d)Subsection, 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such Personspersons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, or is beneficially owned, collectively, by any two or more such Personspersons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), (Ai) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated Indenture and securities issued under any other indenture under for which the Trustee is also trustee, or (Bii) ten percent 10% or more of any class of security of an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), five percent 5% or more of the voting securities of any Person 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 Company or any other obligor on the Subordinated SecuritiesCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), ten percent 10% or more of any class of security of any Person person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated Securities;Company; or
(9) the Trustee owns owns, on the date of the occurrence of such an Event of Default (exclusive upon the Securities of any period of grace or requirement of notice) series or any anniversary thereof of such date while such Event of Default default upon the Securities remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity capacity, an aggregate of 25% or more of the voting securities securities, or of any class of security, of any Personperson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (d)Subsection. 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence dates of any such Event of Default default and annually in each succeeding year that the Subordinated Securities or any series thereof 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 datedates. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of the principal of or, if any Securities are Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified in the terms thereof, premium (if any), or interest on any of the Subordinated Securities of any series when and as the same become becomes due and payable payable, and such failure continues for 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)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 (d); or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company or any other obligor on the Subordinated SecuritiesSubsection. The specifications specification of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) Subsection shall not be construed as indicating that the ownership of such percentages of the securities of a Person person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph paragraphs (3) or (7) of this subsection (d)Subsection.
Appears in 2 contracts
Samples: Indenture (Security Capital U S Realty), Indenture (Security Capital U S Realty)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08Section, it shallwith respect to the Securities of any series:
(i) then, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided below in this Section 7.08Section, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointmentresign, and the Company shall take prompt steps to appoint have a successor appointed in accordance with the manner provided in Section 7.10.6.10;
(bii) In in the event that the Trustee shall fail to comply with the provisions of subsection Clause (ai) of this Section 7.08Subsection, the Trustee shall, within ten 10 days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders Holders of the Securities of the applicable series in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.7.3(c); and
(ciii) Subject subject to the provisions of Section 6.11 of this Subordinated Indenture5.14, unless the Trustee's ’s duty to resign is stayed as provided below in subsection (f) of this Section 7.08Section, any Holder of the Securities of the applicable series who has been a bona fide Holder of Subordinated such Securities for at least six months may, on such Holder's behalf and on behalf of himself and all other Holders others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee the Trustee, and the appointment of a successor, if such the Trustee fails fails, after written request thereof by such Holder Hxxxxx to comply with the provisions of subsection Clause (ai) of this Section 7.08Subsection.
(db) For the purposes of this Section 7.08 the Section, a Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred exists with respect to Subordinated the Securities of such the applicable series and:
(1i) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than the applicable series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securitiesoutstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated IndentureIndenture; provided, provided however, that there shall be excluded from the operation of this paragraph, paragraph this Subordinated Indenture with respect to the Subordinated Securities of any series other than the applicable series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if if
(A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank ranks equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to subsection (bSection 305(b) of or Section 305 or subsection (c307(c) of Section 307 of the Trust Indenture Act, Act that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such the applicable series and one or more other series, series or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture or indentures, or or
(B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture, 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 Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and one of such indentures;other indenture or indentures;
(2ii) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated Securities;Company;
(3iii) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated Securities;Company;
(4iv) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated SecuritiesCompany, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities who is currently engaged in the business of underwriting, except that (Ai) one individual may be a director and/or or an executive officer officer, or both, of the Trustee and a director and/or or an executive officer officer, or both, of the Company or any other obligor on the Subordinated SecuritiesCompany, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated Securities; Company; (Bii) 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 officer, or both, of the Trustee and a director of the Company or any other obligor on the Subordinated Securities; Company; and (Ciii) the Trustee may be designated by the Company or by any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d)Subsection, to act as trustee trustee, whether under an indenture or otherwise;otherwise;
(5v) ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such Persons; persons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, or is beneficially owned, collectively, by any two or more such Persons;persons;
(6vi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), (Ai) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (Bii) ten percent 10% or more of any class of security of an underwriter for the Company or any other obligor on the Subordinated Securities;Company;
(7vii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), five percent 5% or more of the voting securities of any Person 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 Company or any other obligor on the Subordinated Securities;Company;
(8) viii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), ten percent 10% or more of any class of security of any Person person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated Securities;Company;
(9ix) the Trustee owns owns, on the date of an Event of Default with respect to the occurrence Securities of the applicable series or any anniversary of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity capacity, an aggregate of 25% or more of the voting securities securities, or of any class of security, of any Personperson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (d)Subsection. 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence dates of any such Event of Default with respect to the Securities of the applicable series and annually in each succeeding year that the Subordinated Securities or any series thereof remain in defaultsuch Event of Default remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datedates. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of the principal of (or premium, if any, on) or interest on any of the Subordinated Securities when and as the same become becomes due and payable payable, and such failure continues for 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)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 (d); Subsection; or
(10x) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b6.13(b), the Trustee shall be or become a creditor of the Company Company. For purposes of paragraph (i) of this Subsection, and of Sections 5.12 and 5.13, the term “series of securities” and “series” means a series, class or group of securities issuable under an indenture pursuant to whose terms holders of one such series may vote to direct the indenture trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another such series; provided, however, that “series of securities” or “series” shall not include any other obligor on the Subordinated Securitiesseries of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specifications specification of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) Subsection shall not be construed as indicating that the ownership of such percentages of the securities of a Person 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 (d)Subsection.
Appears in 2 contracts
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08Section, it shallwith respect to the Securities of any series:
(i) then, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided below in this Section 7.08Section, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointmentresign, and the Company shall take prompt steps to appoint have a successor appointed in accordance with the manner provided in Section 7.10.6.10;
(bii) In in the event that the Trustee shall fail to comply with the provisions of subsection Clause (ai) of this Section 7.08Subsection, the Trustee shall, within ten 10 days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders Holders of the Securities of the applicable series in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.7.3(c); and
(ciii) Subject subject to the provisions of Section 6.11 of this Subordinated Indenture5.14, unless the Trustee's ’s duty to resign is stayed as provided below in subsection (f) of this Section 7.08Section, any Holder of the Securities of the applicable series who has been a bona fide Holder of Subordinated such Securities for at least six months may, on such Holder's behalf and on behalf of himself and all other Holders others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee the Trustee, and the appointment of a successor, if such the Trustee fails fails, after written request thereof by such Holder Xxxxxx to comply with the provisions of subsection Clause (ai) of this Section 7.08Subsection.
(db) For the purposes of this Section 7.08 the Section, a Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred exists with respect to Subordinated the Securities of such the applicable series and:
(1i) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than the applicable series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securitiesoutstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated IndentureIndenture; provided, provided however, that there shall be excluded from the operation of this paragraph, paragraph this Subordinated Indenture with respect to the Subordinated Securities of any series other than the applicable series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if if
(A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank ranks equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to subsection (bSection 305(b) of or Section 305 or subsection (c307(c) of Section 307 of the Trust Indenture Act, Act that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such the applicable series and one or more other series, series or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture or indentures, or or
(B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture, 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 Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and one of such indentures;other indenture or indentures;
(2ii) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated Securities;Company;
(3iii) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated Securities;Company;
(4iv) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated SecuritiesCompany, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities who is currently engaged in the business of underwriting, except that (Ai) one individual may be a director and/or or an executive officer officer, or both, of the Trustee and a director and/or or an executive officer officer, or both, of the Company or any other obligor on the Subordinated SecuritiesCompany, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated Securities; Company; (Bii) 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 officer, or both, of the Trustee and a director of the Company or any other obligor on the Subordinated Securities; Company; and (Ciii) the Trustee may be designated by the Company or by any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d)Subsection, to act as trustee trustee, whether under an indenture or otherwise;otherwise;
(5v) ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such Persons; persons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, or is beneficially owned, collectively, by any two or more such Persons;persons;
(6vi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), (Ai) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (Bii) ten percent 10% or more of any class of security of an underwriter for the Company or any other obligor on the Subordinated Securities;Company;
(7vii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), five percent 5% or more of the voting securities of any Person 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 Company or any other obligor on the Subordinated Securities;Company;
(8) viii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), ten percent 10% or more of any class of security of any Person person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated Securities;Company;
(9ix) the Trustee owns owns, on the date of an Event of Default with respect to the occurrence Securities of the applicable series or any anniversary of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity capacity, an aggregate of 25% or more of the voting securities securities, or of any class of security, of any Personperson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (d)Subsection. 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence dates of any such Event of Default with respect to the Securities of the applicable series and annually in each succeeding year that the Subordinated Securities or any series thereof remain in defaultsuch Event of Default remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datedates. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of the principal of (or premium, if any, on) or interest on any of the Subordinated Securities when and as the same become becomes due and payable payable, and such failure continues for 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)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 (d); Subsection; or
(10x) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b6.13(b), the Trustee shall be or become a creditor of the Company Company. For purposes of paragraph (i) of this Subsection, and of Sections 5.12 and 5.13, the term “series of securities” and “series” means a series, class or group of securities issuable under an indenture pursuant to whose terms holders of one such series may vote to direct the indenture trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another such series; provided, however, that “series of securities” or “series” shall not include any other obligor on the Subordinated Securitiesseries of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specifications specification of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) Subsection shall not be construed as indicating that the ownership of such percentages of the securities of a Person 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 (d)Subsection.
Appears in 1 contract
Samples: Indenture (Carnival PLC)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.08, resign in the manner and with the effect specified in Section 7.10, 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 appoint a successor in accordance with Section 7.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 7.08, the Trustee shall, within ten days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's duty to resign is stayed as provided in subsection (f) of this Section 7.08, any Holder who has been a bona fide Holder of Subordinated Securities for at least six months may, on such Holder's behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series Series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred with respect to Subordinated Securities of such series Series and:
(1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securities, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture, provided that there shall be excluded from the operation of this paragraph, this Subordinated Indenture with respect to the Subordinated Securities of any other series Series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if (A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActAct of 1939, unless the 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 ActAct of 1939, that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such series Series and one or more other seriesSeries, or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture and such other indenture or indentures, or (B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture 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 Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture and one of such indentures;,
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated Securities;,
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated Securities;,
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated Securities, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities 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 Company or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated Securities; (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 Company or any other obligor on the Subordinated Securities; and (C) the Trustee may be designated by the Company or any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d), 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% 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 Company or any other obligor on the Subordinated Securities 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, as hereinafter defined, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated 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 Company or any other obligor on the Subordinated Securities;,
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter 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 Company or any other obligor on the Subordinated Securities;,
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter defined, ten percent or more of any class of security of any Person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated Securities;Securities or
(9) the Trustee owns on the date of the occurrence of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of 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 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 paragraph (6), (7) or (8) of this subsection (d). 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence of any such Event of Default and annually in each succeeding year that the Subordinated Securities or any series Series thereof 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 date. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of principal of or interest on any of the Subordinated Securities when and as the same become due and payable and such failure continues for 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 (d); , or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d).
Appears in 1 contract
Samples: Senior Indenture (Ati Financing Ii)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.087.8, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.087.8, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointment, and the Company Corporation shall take prompt steps to appoint a successor in accordance with Section 7.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 7.087.8, the Trustee shall, within ten days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 5.4 with respect to reports pursuant to subsection (a) of said Section 5.045.4.
(c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's duty to resign is stayed as provided in subsection (f) of this Section 7.087.8, any Holder who has been a bona fide BONA FIDE Holder of Subordinated Securities for at least six months may, on such Holder's behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.087.8.
(d) For the purposes of this Section 7.08 7.8 the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series Series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred with respect to Subordinated Securities of such series Series and:
(1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company Corporation or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company Corporation or any other obligor on the Subordinated Securities, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture, provided that PROVIDED THAT there shall be excluded from the operation of this paragraph, this Subordinated Indenture with respect to the Subordinated Securities of any other series Series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company Corporation or any other obligor on the Subordinated Securities are outstanding, if (A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActAct of 1939, unless the 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 ActAct of 1939, that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such series Series and one or more other seriesSeries, or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture and such other indenture or indentures, or (B) the Company Corporation shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture 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 Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture and one of such indentures;,
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company Corporation or any other obligor on the Subordinated Securities;,
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company Corporation or any other obligor on the Subordinated Securities;,
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company Corporation or any other obligor on the Subordinated Securities, or of an underwriter (other than the Trustee itself) for the Company Corporation or any other obligor on the Subordinated Securities 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 Company Corporation or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company Corporation or any other obligor on the Subordinated Securities; (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 Company Corporation or any other obligor on the Subordinated Securities; and (C) the Trustee may be designated by the Company Corporation or any other obligor on the Subordinated Securities or by an underwriter for the Company Corporation or any other obligor on the Subordinated Securities 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 (d), 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 Company Corporation or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% 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 Company Corporation or any other obligor on the Subordinated Securities 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, as hereinafter defined, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Company Corporation or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated 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 Company Corporation or any other obligor on the Subordinated Securities;,
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter 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 Company Corporation or any other obligor on the Subordinated Securities;,
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter defined, ten percent or more of any class of security of any Person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company Corporation or any other obligor on the Subordinated Securities;Securities or
(9) the Trustee owns on the date of the occurrence of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos INTER VIVOS trustee, guardian, committee or conservator, or in any other similar capacity an aggregate of 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 paragraph (6), (7) or (8) of this subsection (d). 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence of any such Event of Default and annually in each succeeding year that the Subordinated Securities or any series Series thereof 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 date. If the Company Corporation or any other obligor on the Subordinated Securities fails to make payment in full of principal of or interest on any of the Subordinated Securities when and as the same become due and payable and such failure continues for 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 (d); , or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company Corporation or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d).
Appears in 1 contract
Samples: Indenture (Providian Financing Iv)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.087.8, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.087.8, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointment, and the Company Corporation shall take prompt steps to appoint a successor in accordance with Section 7.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 7.087.8, the Trustee shall, within ten days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 5.4 with respect to reports pursuant to subsection (a) of said Section 5.045.4.
(c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's duty to resign is stayed as provided in subsection (f) of this Section 7.087.8, any Holder who has been a bona fide BONA FIDE Holder of Subordinated Securities for at least six months may, on such Holder's behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.087.8.
(d) For the purposes of this Section 7.08 7.8 the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series Series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred with respect to Subordinated Securities of such series Series and:
(1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company Corporation or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company Corporation or any other obligor on the Subordinated Securities, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture, provided that PROVIDED THAT there shall be excluded from the operation of this paragraph, this Subordinated Indenture with respect to the Subordinated Securities of any other series Series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company Corporation or any other obligor on the Subordinated Securities are outstanding, if (A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActAct of 1939, unless the 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 ActAct of 1939, that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such series Series and one or more other seriesSeries, or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture and such other indenture or indentures, or (B) the Company Corporation shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture 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 Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture and one of such indentures;,
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company Corporation or any other obligor on the Subordinated Securities;,
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company Corporation or any other obligor on the Subordinated Securities;,
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company Corporation or any other obligor on the Subordinated Securities, or of an underwriter (other than the Trustee itself) for the Company Corporation or any other obligor on the Subordinated Securities 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 Company Corporation or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company Corporation or any other obligor on the Subordinated Securities; (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 Company Corporation or any other obligor on the Subordinated Securities; and (C) the Trustee may be designated by the Company Corporation or any other obligor on the Subordinated Securities or by an underwriter for the Company Corporation or any other obligor on the Subordinated Securities 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 (d), 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 Company Corporation or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% 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 Company Corporation or any other obligor on the Subordinated Securities 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, as hereinafter defined, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Company Corporation or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated 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 Company Corporation or any other obligor on the Subordinated Securities;,
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter 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 Company Corporation or any other obligor on the Subordinated Securities;,
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter defined, ten percent or more of any class of security of any Person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company Corporation or any other obligor on the Subordinated Securities;Securities or
(9) the Trustee owns on the date of the occurrence of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos INTER VIVOS trustee, guardian, committee or conservator, or in any other similar capacity an aggregate of 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 paragraph (6), (7) or (8) of this subsection (d). 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence of any such Event of Default and annually in each succeeding year that the Subordinated Securities or any series Series thereof 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 date. If the Company Corporation or any other obligor on the Subordinated Securities fails to make payment in full of principal of or interest on any of the Subordinated Securities when and as the same become due and payable and such failure continues for 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 (d); , or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company Corporation or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d).
Appears in 1 contract
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.08, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's ’s acceptance of such appointment, and the Company shall take prompt steps to appoint a successor in accordance with Section 7.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 7.08, the Trustee shall, within ten days after the expiration of such 90-–day period, transmit notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's ’s duty to resign is stayed as provided in subsection (f) of this Section 7.08, any Holder who has been a bona fide Holder of Subordinated Securities for at least six months may, on such Holder's ’s behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred with respect to Subordinated Securities of such series and:
(1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securities, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture, provided that there shall be excluded from the operation of this paragraph, this Subordinated Indenture with respect to the Subordinated Securities of any other series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if (A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture Act, unless the 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, that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such series and one or more other series, or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and such other indenture or indentures, or (B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and one of such indentures;
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated Securities;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated Securities;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated Securities, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities 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 Company or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated Securities; (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 Company or any other obligor on the Subordinated Securities; and (C) the Trustee may be designated by the Company or any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d), 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% 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 Company or any other obligor on the Subordinated Securities 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, as hereinafter defined, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated 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 Company or any other obligor on the Subordinated Securities;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter 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 Company or any other obligor on the Subordinated Securities;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter defined, ten percent or more of any class of security of any Person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated Securities;; or
(9) the Trustee owns on the date of the occurrence of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of 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 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 paragraph (6), (7) or (8) of this subsection (d). 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence of any such Event of Default and annually in each succeeding year that the Subordinated Securities or any series thereof 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 date. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of principal of or interest on any of the Subordinated Securities when and as the same become due and payable and such failure continues for 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 (d); or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d).
Appears in 1 contract
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.08, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's ’s acceptance of such appointment, and the Company shall take prompt steps to appoint a successor in accordance with Section 7.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 7.08, the Trustee shall, within ten days after the expiration of such 90-—day period, transmit notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's ’s duty to resign is stayed as provided in subsection (f) of this Section 7.08, any Holder who has been a bona fide Holder of Subordinated Securities for at least six months may, on such Holder's ’s behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred with respect to Subordinated Securities of such series and:
(1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securities, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture, provided that there shall be excluded from the operation of this paragraph, this Subordinated Indenture with respect to the Subordinated Securities of any other series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if (A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture Act, unless the 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, that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such series and one or more other series, or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and such other indenture or indentures, or (B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and one of such indentures;
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated Securities;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated Securities;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated Securities, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities 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 Company or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated Securities; (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 Company or any other obligor on the Subordinated Securities; and (C) the Trustee may be designated by the Company or any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d), 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% 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 Company or any other obligor on the Subordinated Securities 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, as hereinafter defined, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated 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 Company or any other obligor on the Subordinated Securities;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter 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 Company or any other obligor on the Subordinated Securities;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter defined, ten percent or more of any class of security of any Person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated Securities;
(9) the Trustee owns on the date of the occurrence of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of 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 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 paragraph (6), (7) or (8) of this subsection (d). 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence of any such Event of Default and annually in each succeeding year that the Subordinated Securities or any series thereof 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 date. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of principal of or interest on any of the Subordinated Securities when and as the same become due and payable and such failure continues for 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 (d); or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d).
Appears in 1 contract
Samples: Subordinated Indenture (Covad Communications Group Inc)
Disqualification; Conflicting Interest. (a) If the Trustee -------------------------------------- has or shall acquire any conflicting interest, as defined in this Section 7.08, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.08, resign in the manner and with the effect specified in Section 7.10, 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 appoint a successor in accordance with Section 7.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 7.08, the Trustee shall, within ten days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's duty to resign is stayed as provided in subsection (f) of this Section 7.08, any Holder who has been a bona fide Holder of Subordinated Securities for at least six months may, on such Holder's behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred with respect to Subordinated Securities of such series and:
(1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securities, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture, provided that there shall be excluded from the operation of this paragraph, this Subordinated Indenture with respect to the Subordinated Securities of any other series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if (A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture Act, unless the 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, that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such series and one or more other series, or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and such other indenture or indentures, or (B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and one of such indentures;
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated Securities;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated Securities;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated Securities, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities 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 Company or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated Securities; (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 Company or any other obligor on the Subordinated Securities; and (C) the Trustee may be designated by the Company or any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d), 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% 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 Company or any other obligor on the Subordinated Securities 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, as hereinafter defined, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated 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 Company or any other obligor on the Subordinated Securities;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter 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 Company or any other obligor on the Subordinated Securities;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter defined, ten percent or more of any class of security of any Person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated Securities;
(9) the Trustee owns on the date of the occurrence of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of 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 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 paragraph (6), (7) or (8) of this subsection (d). 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence of any such Event of Default and annually in each succeeding year that the Subordinated Securities or any series thereof 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 date. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of principal of or interest on any of the Subordinated Securities when and as the same become due and payable and such failure continues for 30 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 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 (d); or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d).
Appears in 1 contract
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.08, resign in the manner and with the effect specified in Section 7.10, 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 appoint have a successor appointed in accordance with 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 7.08Section, the Trustee shall, within ten days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's duty to resign is stayed as provided in subsection (f) of this Section 7.08, any Holder who has been a bona fide Holder of Subordinated Securities for at least six months may, on such Holder's behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series Series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred with respect to Subordinated Securities securities of such series Series and:
(1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or the Guarantor or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company Company, the Guarantor or any other obligor on the Subordinated Securities, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated IndentureSecurities, provided that there shall be excluded from the operation of this paragraph, this Subordinated Indenture with respect to the Subordinated Securities of any other series OutstandingSeries outstanding, the Indenture dated as of ________ between ________________ and the Trustee, an Indenture dated as of _________ between _____________________ and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or the Guarantor or any other obligor on the Subordinated Securities are outstanding, if (A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActAct of 1939, unless the 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 ActAct of 1939, that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such series Series and one or more other seriesSeries, or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture and such other indenture or indentures, or (B) the Company or the Guarantor shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture 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 Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture and one of such indentures;,
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company or the Guarantor or any other obligor on the Subordinated Securities;,
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or the Guarantor or any other obligor on the Subordinated Securities;,
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or the Guarantor or any other obligor on the Subordinated Securities, or of an underwriter (other than the Trustee itself) for the Company or the Guarantor or any other obligor on the Subordinated Securities 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 Company or the Guarantor or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company or the Guarantor or any other obligor on the Subordinated Securities; (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 Company or the Guarantor or any other obligor on the Subordinated Securities; and (C) the Trustee may be designated by the Company or the Guarantor or any other obligor on the Subordinated Securities or by an underwriter for the Company or the Guarantor or any other obligor on the Subordinated Securities 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 (1) of this subsection (d), to act as trustee whether under an indenture or otherwise;,
(5) ten percent or more of the voting securities of the Trustee is are beneficially owned either by the Company or the Guarantor or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% 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 are beneficially owned either by an underwriter for the Company or the Guarantor or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, respectively, or is are 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, default as hereinafter defined, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Company or the Guarantor or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated 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 Company or the Guarantor or any other obligor on the Subordinated Securities;,
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter 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 Company or the Guarantor or any other obligor on the Subordinated Securities;,
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter defined, ten percent or more of any class of security of any Person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or the Guarantor or any other obligor on the Subordinated Securities;,
(9) the Trustee owns on the date of the occurrence of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of 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 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 paragraph (6), (7) or (8) of this subsection (d). 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence of any such Event of Default and annually in each succeeding year that the Subordinated Securities or any series Series thereof 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 date. If the Company or the Guarantor or any other obligor on the Subordinated Securities fails to make payment in full of principal of or interest on any of the Subordinated Securities when and as the same become becomes due and payable and such failure continues for 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 (d); , or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company or the Guarantor or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d).
Appears in 1 contract
Disqualification; Conflicting Interest. (a) If the Trustee -------------------------------------- has or shall acquire any conflicting interest, as defined in this Section 7.08, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.08, resign in the manner and with the effect specified in Section 7.10, 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 appoint a successor in accordance with Section 7.10.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 7.08, the Trustee shall, within ten days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's duty to resign is stayed as provided in subsection (f) of this Section 7.08, any Holder who has been a bona fide Holder of Subordinated Securities for at least six months may, on such Holder's behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred with respect to Subordinated Securities of such series and:
(1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securities, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture, provided that there shall be excluded from the operation of this paragraph, this Subordinated Indenture with respect to the Subordinated Securities of any other series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if (A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture Act, unless the 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, that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such series and one or more other series, or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and such other indenture or indentures, or (B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture 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 Subordinated Indenture with respect to Subordinated Securities of such series and such other series, or under this Subordinated Indenture and one of such indentures;
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated Securities;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated Securities;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated Securities, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities 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 Company or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated Securities; (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 Company or any other obligor on the Subordinated Securities; and (C) the Trustee may be designated by the Company or any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d), 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% 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 Company or any other obligor on the Subordinated Securities 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, as hereinafter defined, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated 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 Company or any other obligor on the Subordinated Securities;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter 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 Company or any other obligor on the Subordinated Securities;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter defined, ten percent or more of any class of security of any Person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated Securities;; or
(9) the Trustee owns on the date of the occurrence of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of 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 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 paragraph (6), (7) or (8) of this subsection (d). 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence of any such Event of Default and annually in each succeeding year that the Subordinated Securities or any series thereof 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 date. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of principal of or interest on any of the Subordinated Securities when and as the same become due and payable and such failure continues for 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 (d); or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d).
Appears in 1 contract
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.08, resign in the manner and with the effect specified in Section 7.10, 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 appoint have a successor appointed in accordance with 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 7.08Section, the Trustee shall, within ten days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's duty to resign is stayed as provided in subsection (f) of this Section 7.08, any Holder who has been a bona fide ---- ---- Holder of Subordinated Securities for at least six months may, on such Holder's behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.08.of
(d) For the purposes of this Section 7.08 the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series Series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred with respect to Subordinated Securities securities of such series Series and:
(1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or the Guarantor or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company Company, the Guarantor or any other obligor on the Subordinated Securities, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated IndentureSecurities, provided that there shall be excluded from the operation of this paragraph, this Subordinated Indenture with respect to the Subordinated Securities of any other series OutstandingSeries outstanding, the Indenture dated as of May 15, 1987 among Chevron Capital U.S.A. Inc, as issuer, Chevron Corporation, as guarantor and the Trustee and the Indenture dated as of June 15, 1995 between Chevron Corporation and the Trustee and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or the Guarantor or any other obligor on the Subordinated Securities are outstanding, if (A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActAct of 1939, unless the 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 ActAct of 1939, that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such series Series and one or more other seriesSeries, or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture and such other indenture or indentures, or (B) the Company or the Guarantor shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture 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 Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture and one of such indentures;,
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company or the Guarantor or any other obligor on the Subordinated Securities;,
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or the Guarantor or any other obligor on the Subordinated Securities;,
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or the Guarantor or any other obligor on the Subordinated Securities, or of an underwriter (other than the Trustee itself) for the Company or the Guarantor or any other obligor on the Subordinated Securities 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 Company or the Guarantor or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company or the Guarantor or any other obligor on the Subordinated Securities; (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 Company or the Guarantor or any other obligor on the Subordinated Securities; and (C) the Trustee may be designated by the Company or the Guarantor or any other obligor on the Subordinated Securities or by an underwriter for the Company or the Guarantor or any other obligor on the Subordinated Securities 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 (1) of this subsection (d), to act as trustee whether under an indenture or otherwise;,
(5) ten percent or more of the voting securities of the Trustee is are beneficially owned either by the Company or the Guarantor or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is are beneficially owned, collectively, by any two or more of such Persons; or ten percent or more of the voting securities of the Trustee is are beneficially owned either by an underwriter for the Company or the Guarantor or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, respectively, or is are 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, default as hereinafter defined, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Company or the Guarantor or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated 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 Company or the Guarantor or any other obligor on the Subordinated Securities;,
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter 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 Company or the Guarantor or any other obligor on the Subordinated Securities;,
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter defined, ten percent or more of any class of security of any Person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or the Guarantor or any other obligor on the Subordinated Securities;,
(9) the Trustee owns on the date of the occurrence of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of 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 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 paragraph (6), (7) or (8) of this subsection (d). 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence of any such Event of Default and annually in each succeeding year that the Subordinated Securities or any series Series thereof 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 date. If the Company or the Guarantor or any other obligor on the Subordinated Securities fails to make payment in full of principal of or interest on any of the Subordinated Securities when and as the same become becomes due and payable and such failure continues for 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 (d); , or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company or the Guarantor or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d).
Appears in 1 contract
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08Section, it shallwith respect to the Securities of any series:
(1) then, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided below in this Section 7.08Section, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointmentresign, and the Company shall take prompt steps to appoint have a successor appointed in accordance with the manner provided in Section 7.10.6.10;
(b2) In in the event that the Trustee shall fail to comply with the provisions of subsection clause (ai) of this Section 7.08Subsection, the Trustee shall, within ten 10 days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders Holders of the Securities of the applicable series in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.7.3(c); and
(c3) Subject subject to the provisions of Section 6.11 of this Subordinated Indenture5.14, unless the Trustee's duty to resign is stayed as provided below in subsection (f) of this Section 7.08Section, any Holder of the Securities of the applicable series who has been a bona fide Holder of Subordinated such Securities for at least six months may, on such Holder's behalf and on behalf of himself and all other Holders others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee the Trustee, and the appointment of a successor, if such the Trustee fails fails, after written request thereof by such Holder to comply with the provisions of subsection clause (a1) of this Section 7.08Subsection.
(db) For the purposes of this Section 7.08 the Section, a Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred exists with respect to Subordinated the Securities of such the applicable series and:
(1) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than the applicable series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securitiesoutstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture; PROVIDED, provided HOWEVER, that there shall be excluded from the operation of this paragraph, paragraph this Subordinated Indenture with respect to the Subordinated Securities of any series other than the applicable series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if if
(Ai) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank ranks equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActAct of 1939, unless the Commission shall have found and declared by order pursuant to subsection (bSection 305(b) of or Section 305 or subsection (c307(c) of Section 307 of the Trust Indenture Act, Act of 1939 that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such the applicable series and one or more other series, series or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture or indentures, or or
(Bii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture, 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 Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and one of such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated SecuritiesCompany, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities who is currently engaged in the business of underwriting, except that (Ai) one individual may be a director and/or or an executive officer officer, or both, of the Trustee and a director and/or or an executive officer officer, or both, of the Company or any other obligor on the Subordinated SecuritiesCompany, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated SecuritiesCompany; (Bii) 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 officer, or both, of the Trustee and a director of the Company or any other obligor on the Subordinated SecuritiesCompany; and (Ciii) the Trustee may be designated by the Company or by any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d)Subsection, 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such Personspersons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, or is beneficially owned, collectively, by any two or more such Personspersons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), (Ai) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (Bii) ten percent 10% or more of any class of security of an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), five percent 5% or more of the voting securities of any Person 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 Company or any other obligor on the Subordinated SecuritiesCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), ten percent 10% or more of any class of security of any Person person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated SecuritiesCompany;
(9) the Trustee owns owns, on the date of an Event of Default with respect to the occurrence Securities of the applicable series or any anniversary of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity capacity, an aggregate of 25% or more of the voting securities securities, or of any class of security, of any Personperson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (d)Subsection. 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence dates of any such Event of Default with respect to the Securities of the applicable series and annually in each succeeding year that the Subordinated Securities or any series thereof remain in defaultsuch Event of Default remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datedates. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of the principal of (or premium, if any, on) or interest on any of the Subordinated Securities when and as the same become becomes due and payable payable, and such failure continues for 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)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 (d)Subsection; or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b6.13(b), the Trustee shall be or become a creditor of the Company or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d)Company.
Appears in 1 contract
Samples: Indenture (Carnival Corp)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.08, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's ’s acceptance of such appointment, and the Company shall take prompt steps to appoint have a successor appointed in accordance with 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 7.08Section, the Trustee shall, within ten days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's ’s duty to resign is stayed as provided in subsection (f) of this Section 7.08, any Holder who has been a bona fide Holder of Subordinated Securities for at least six months may, on such Holder's ’s behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series Series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred with respect to Subordinated Securities securities of such series Series and:
(1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or the Guarantor or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company Company, the Guarantor or any other obligor on the Subordinated Securities, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated IndentureSecurities, provided that there shall be excluded from the operation of this paragraph, this Subordinated Indenture with respect to the Subordinated Securities of any other series OutstandingSeries outstanding; the Indenture dated as of June 15, 1995 between Chevron Corporation and the Trustee; the Indenture dated as of May 15, 1987 among Chevron Capital U.S.A. Inc., as issuer, Chevron Corporation, as guarantor and the Trustee; the Indenture dated as of October 15, 1991 among Chevron Corporation Profit Sharing/Savings Plan Trust Fund, as issuer, Chevron Corporation, as guarantor, and the Trustee; and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or the Guarantor or any other obligor on the Subordinated Securities are outstanding, if (A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActAct of 1939, unless the 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 ActAct of 1939, that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such series Series and one or more other seriesSeries, or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture and such other indenture or indentures, or (B) the Company or the Guarantor shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture 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 Subordinated Indenture with respect to Subordinated Securities of such series Series and such other seriesSeries, or under this Subordinated Indenture and one of such indentures;,
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company or the Guarantor or any other obligor on the Subordinated Securities;,
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or the Guarantor or any other obligor on the Subordinated Securities;,
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or the Guarantor or any other obligor on the Subordinated Securities, or of an underwriter (other than the Trustee itself) for the Company or the Guarantor or any other obligor on the Subordinated Securities 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 Company or the Guarantor or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company or the Guarantor or any other obligor on the Subordinated Securities; (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 Company or the Guarantor or any other obligor on the Subordinated Securities; and (C) the Trustee may be designated by the Company or the Guarantor or any other obligor on the Subordinated Securities or by an underwriter for the Company or the Guarantor or any other obligor on the Subordinated Securities 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 (1) of this subsection (d), to act as trustee whether under an indenture or otherwise;,
(5) ten percent or more of the voting securities of the Trustee is are beneficially owned either by the Company or the Guarantor or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% 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 are beneficially owned either by an underwriter for the Company or the Guarantor or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, respectively, or is are 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, default as hereinafter defined, (A) five percent or more of the voting securities, or ten percent or more of any other class of security, of the Company or the Guarantor or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated 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 Company or the Guarantor or any other obligor on the Subordinated Securities;,
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter 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 Company or the Guarantor or any other obligor on the Subordinated Securities;,
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, as hereinafter defined, ten percent or more of any class of security of any Person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or the Guarantor or any other obligor on the Subordinated Securities;,
(9) the Trustee owns on the date of the occurrence of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of 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 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 paragraph (6), (7) or (8) of this subsection (d). 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence of any such Event of Default and annually in each succeeding year that the Subordinated Securities or any series Series thereof 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 date. If the Company or the Guarantor or any other obligor on the Subordinated Securities fails to make payment in full of principal of or interest on any of the Subordinated Securities when and as the same become becomes due and payable and such failure continues for 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 (d); , or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company or the Guarantor or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d).
Appears in 1 contract
Samples: Indenture (Chevron Funding Corp)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08Section, it shallwith respect to the Securities of any series:
(i) then, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided below in this Section 7.08Section, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointmentresign, and the Company shall take prompt steps to appoint have a successor appointed in accordance with the manner provided in Section 7.10.6.10;
(bii) In in the event that the Trustee shall fail to comply with the provisions of subsection clause (ai) of this Section 7.08Subsection, the Trustee shall, within ten 10 days after the expiration of such 90-day by period, transmit notice of such failure to the Subordinated Securityholders Holders of the Securities of the applicable series in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.7.3(c); and
(ciii) Subject subject to the provisions of Section 6.11 of this Subordinated Indenture5.14, unless the Trustee's ’s duty to resign is stayed as provided below in subsection (f) of this Section 7.08Section, any Holder Holders of the Securities of the applicable series who has been a bona fide Holder of Subordinated such Securities for at least six months may, on such Holder's behalf and on behalf of himself and all other Holders others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee the Trustee, and the appointment of a successor, if such the Trustee fails fails, after written request thereof by such Holder Xxxxxx to comply with the provisions of subsection clause (ai) of this Section 7.08Subsection.
(db) For the purposes of this Section 7.08 the Section, a Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred exists with respect to Subordinated the Securities of such the applicable series and:
(1) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than the applicable series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securitiesoutstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture; provided, provided however, that there shall be excluded from the operation of this paragraph, paragraph this Subordinated Indenture with respect to the Subordinated Securities of any series other than the applicable series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if if
(Ai) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank ranks equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActAct of 1939, unless the Commission shall have found and declared by order pursuant to subsection (bSection 305(b) of or Section 305 or subsection (c307(c) of Section 307 of the Trust Indenture Act, Act of 1939 that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such the applicable series and one or more other series, series or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture or indentures, or or
(Bii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture, 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 Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and one of such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated SecuritiesCompany, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities who is currently engaged in the business of underwriting, except that (Ai) one individual may be a director and/or or an executive officer officer, or both, of the Trustee and a director and/or or an executive officer officer, or both, of the Company or any other obligor on the Subordinated SecuritiesCompany, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated SecuritiesCompany; (Bii) 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 officer, or both, of the Trustee and a director of the Company or any other obligor on the Subordinated SecuritiesCompany; and (Ciii) the Trustee may be designated by the Company or by any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d)the Subsection, 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such Personspersons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, or is beneficially owned, collectively, by any two or more such Personspersons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), (Ai) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (Bii) ten percent 10% or more of any class of security of an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), five percent 5% or more of the voting securities of any Person 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 Company or any other obligor on the Subordinated SecuritiesCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), ten percent 10% or more of any class of security of any Person person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated SecuritiesCompany;
(9) the Trustee owns owns, on the date of an Event of Default with respect to the occurrence Securities of the applicable series or any anniversary of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity capacity, an aggregate of 25% or more of the voting securities securities, or of any class of security, of any Personperson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (d)Subsection. 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence dates of any such Event of Default with respect to the Securities of the applicable series and annually in each succeeding year that the Subordinated Securities or any series thereof remain in defaultsuch Event of Default remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datedates. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of the principal of (or premium, if any, on) or interest on any of the Subordinated Securities when and as the same become becomes due and payable payable, and such failure continues for 30 days thereafter, the Trustee shall make a prompt check of its holdings holding 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)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 (d)Subsection; or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b6.13(b), the Trustee shall be or become a creditor of the Company Company. For the purposes of paragraph (1) of this Subsection, and of Section 5.12 and 5.13, the term “series of securities” and “series” means a series, class or group of securities issuable under an indenture pursuant to whose terms holders of one such series may vote to direct the indenture trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another such series; provided, however, that “series of securities” or “series” shall not include any other obligor on the Subordinated Securitiesseries of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specifications specification of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) Subsection shall not be construed as indicating that the ownership of such percentages of the securities of a Person 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 (d)Subsection.
Appears in 1 contract
Samples: Indenture (Carnival Corp)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08Section, it shallwith respect to the Securities of any series:
(i) then, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided below in this Section 7.08Section, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointmentresign, and the Company shall take prompt steps to appoint have a successor appointed in accordance with the manner provided in Section 7.10.6.10;
(bii) In in the event that the Trustee shall fail to comply with the provisions of subsection Clause (ai) of this Section 7.08Subsection, the Trustee shall, within ten 10 days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders Holders of the Securities of the applicable series in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.7.3(c); and
(ciii) Subject subject to the provisions of Section 6.11 of this Subordinated Indenture5.14, unless the Trustee's ’s duty to resign is stayed as provided below in subsection (f) of this Section 7.08Section, any Holder of the Securities of the applicable series who has been a bona fide Holder of Subordinated such Securities for at least six months may, on such Holder's behalf and on behalf of himself and all other Holders others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee the Trustee, and the appointment of a successor, if such the Trustee fails fails, after written request thereof by such Holder Hxxxxx to comply with the provisions of subsection Clause (ai) of this Section 7.08Subsection.
(db) For the purposes of this Section 7.08 the Section, a Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred exists with respect to Subordinated the Securities of such the applicable series and:
(1i) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than the applicable series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securitiesoutstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture; provided, provided however, that there shall be excluded from the operation of this paragraph, paragraph this Subordinated Indenture with respect to the Subordinated Securities of any series other than the applicable series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if if
(A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank ranks equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to subsection (bSection 305(b) of or Section 305 or subsection (c307(c) of Section 307 of the Trust Indenture Act, Act that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such the applicable series and one or more other series, series or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture or indentures, or or
(B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture, 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 Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and one of such other indenture or indentures;
(2ii) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(3iii) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(4iv) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated SecuritiesCompany, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities who is currently engaged in the business of underwriting, except that (Ai) one individual may be a director and/or or an executive officer officer, or both, of the Trustee and a director and/or or an executive officer officer, or both, of the Company or any other obligor on the Subordinated SecuritiesCompany, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated SecuritiesCompany; (Bii) 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 officer, or both, of the Trustee and a director of the Company or any other obligor on the Subordinated SecuritiesCompany; and (Ciii) the Trustee may be designated by the Company or by any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d)Subsection, to act as trustee 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such Personspersons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, or is beneficially owned, collectively, by any two or more such Personspersons;
(6vi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), (Ai) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (Bii) ten percent 10% or more of any class of security of an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(7vii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), five percent 5% or more of the voting securities of any Person 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 Company or any other obligor on the Subordinated SecuritiesCompany;
(8) viii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), ten percent 10% or more of any class of security of any Person person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated SecuritiesCompany;
(9ix) the Trustee owns owns, on the date of an Event of Default with respect to the occurrence Securities of the applicable series or any anniversary of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity capacity, an aggregate of 25% or more of the voting securities securities, or of any class of security, of any Personperson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (d)Subsection. 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence dates of any such Event of Default with respect to the Securities of the applicable series and annually in each succeeding year that the Subordinated Securities or any series thereof remain in defaultsuch Event of Default remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datedates. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of the principal of (or premium, if any, on) or interest on any of the Subordinated Securities when and as the same become becomes due and payable payable, and such failure continues for 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)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 (d)Subsection; or
(10x) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b6.13(b), the Trustee shall be or become a creditor of the Company Company. For purposes of paragraph (i) of this Subsection, and of Sections 5.12 and 5.13, the term “series of securities” and “series” means a series, class or group of securities issuable under an indenture pursuant to whose terms holders of one such series may vote to direct the indenture trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another such series; provided, however, that “series of securities” or “series” shall not include any other obligor on the Subordinated Securitiesseries of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specifications specification of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) Subsection shall not be construed as indicating that the ownership of such percentages of the securities of a Person 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 (d)Subsection.
Appears in 1 contract
Samples: Indenture (Carnival PLC)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08Section, it shallwith respect to the Securities of any series:
(i) then, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided below in this Section 7.08Section, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointmentresign, and the Company shall take prompt steps to appoint have a successor appointed in accordance with the manner provided in Section 7.10.6.10;
(bii) In in the event that the Trustee shall fail to comply with the provisions of subsection Clause (ai) of this Section 7.08Subsection, the Trustee shall, within ten 10 days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders Holders of the Securities of the applicable series in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.7.3(c); and
(ciii) Subject subject to the provisions of Section 6.11 of this Subordinated Indenture5.14, unless the Trustee's ’s duty to resign is stayed as provided below in subsection (f) of this Section 7.08Section, any Holder of the Securities of the applicable series who has been a bona fide Holder of Subordinated such Securities for at least six months may, on such Holder's behalf and on behalf of himself and all other Holders others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee the Trustee, and the appointment of a successor, if such the Trustee fails fails, after written request thereof by such Holder Xxxxxx to comply with the provisions of subsection Clause (ai) of this Section 7.08Subsection.
(db) For the purposes of this Section 7.08 the Section, a Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred exists with respect to Subordinated the Securities of such the applicable series and:
(1i) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than the applicable series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securitiesoutstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture; provided, provided however, that there shall be excluded from the operation of this paragraph, paragraph this Subordinated Indenture with respect to the Subordinated Securities of any series other than the applicable series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if if
(A) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank ranks equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActAct of 1939, unless the Commission shall have found and declared by order pursuant to subsection (bSection 305(b) of or Section 305 or subsection (c307(c) of Section 307 of the Trust Indenture Act, Act of 1939 that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such the applicable series and one or more other series, series or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture or indentures, or or
(B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture, 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 Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and one of such other indenture or indentures;
(2ii) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(3iii) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(4iv) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated SecuritiesCompany, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities who is currently engaged in the business of underwriting, except that (Ai) one individual may be a director and/or or an executive officer officer, or both, of the Trustee and a director and/or or an executive officer officer, or both, of the Company or any other obligor on the Subordinated SecuritiesCompany, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated SecuritiesCompany; (Bii) 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 officer, or both, of the Trustee and a director of the Company or any other obligor on the Subordinated SecuritiesCompany; and (Ciii) the Trustee may be designated by the Company or by any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d)Subsection, to act as trustee 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such Personspersons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, or is beneficially owned, collectively, by any two or more such Personspersons;
(6vi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), (Ai) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (Bii) ten percent 10% or more of any class of security of an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(7vii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), five percent 5% or more of the voting securities of any Person 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 Company or any other obligor on the Subordinated SecuritiesCompany;
(8) viii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), ten percent 10% or more of any class of security of any Person person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated SecuritiesCompany;
(9ix) the Trustee owns owns, on the date of an Event of Default with respect to the occurrence Securities of the applicable series or any anniversary of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity capacity, an aggregate of 25% or more of the voting securities securities, or of any class of security, of any Personperson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (d)Subsection. 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence dates of any such Event of Default with respect to the Securities of the applicable series and annually in each succeeding year that the Subordinated Securities or any series thereof remain in defaultsuch Event of Default remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datedates. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of the principal of (or premium, if any, on) or interest on any of the Subordinated Securities when and as the same become becomes due and payable payable, and such failure continues for 30 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 30-day period, 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 (d)Subsection; or
(10x) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b6.13(b), the Trustee shall be or become a creditor of the Company Company. For purposes of paragraph (i) of this Subsection, and of Sections 5.12 and 5.13, the term “series of securities” and “series” means a series, class or group of securities issuable under an indenture pursuant to whose terms holders of one such series may vote to direct the indenture trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another such series; provided, however, that “series of securities” or “series” shall not include any other obligor on the Subordinated Securitiesseries of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specifications specification of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) Subsection shall not be construed as indicating that the ownership of such percentages of the securities of a Person 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 (d)Subsection.
Appears in 1 contract
Samples: Indenture (Carnival PLC)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08Section, it shallwith respect to the Securities of any series:
(i) then, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided below in this Section 7.08Section, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointmentresign, and the Company shall take prompt steps to appoint have a successor appointed in accordance with the manner provided in Section 7.10.6.10;
(bii) In in the event that the Trustee shall fail to comply with the provisions of subsection clause (ai) of this Section 7.08Subsection, the Trustee shall, within ten 10 days after the expiration of such 90-day by period, transmit notice of such failure to the Subordinated Securityholders Holders of the Securities of the applicable series in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.7.3(c); and
(ciii) Subject subject to the provisions of Section 6.11 of this Subordinated Indenture5.14, unless the Trustee's duty to resign is stayed as provided below in subsection (f) of this Section 7.08Section, any Holder Holders of the Securities of the applicable series who has been a bona fide Holder of Subordinated such Securities for at least six months may, on such Holder's behalf and on behalf of himself and all other Holders others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee the Trustee, and the appointment of a successor, if such the Trustee fails fails, after written request thereof by such Holder to comply with the provisions of subsection clause (ai) of this Section 7.08Subsection.
(db) For the purposes of this Section 7.08 the Section, a Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred exists with respect to Subordinated the Securities of such the applicable series and:
(1) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than the applicable series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securitiesoutstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture; PROVIDED, provided HOWEVER, that there shall be excluded from the operation of this paragraph, paragraph this Subordinated Indenture with respect to the Subordinated Securities of any series other than the applicable series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if if
(Ai) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank ranks equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActAct of 1939, unless the Commission shall have found and declared by order pursuant to subsection (bSection 305(b) of or Section 305 or subsection (c307(c) of Section 307 of the Trust Indenture Act, Act of 1939 that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such the applicable series and one or more other series, series or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture or indentures, or or
(Bii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture, 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 Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and one of such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated SecuritiesCompany, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities who is currently engaged in the business of underwriting, except that (Ai) one individual may be a director and/or or an executive officer officer, or both, of the Trustee and a director and/or or an executive officer officer, or both, of the Company or any other obligor on the Subordinated SecuritiesCompany, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated SecuritiesCompany; (Bii) 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 officer, or both, of the Trustee and a director of the Company or any other obligor on the Subordinated SecuritiesCompany; and (Ciii) the Trustee may be designated by the Company or by any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d)the Subsection, 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such Personspersons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, or is beneficially owned, collectively, by any two or more such Personspersons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), (Ai) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (Bii) ten percent 10% or more of any class of security of an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), five percent 5% or more of the voting securities of any Person 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 Company or any other obligor on the Subordinated SecuritiesCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), ten percent 10% or more of any class of security of any Person person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated SecuritiesCompany;
(9) the Trustee owns owns, on the date of an Event of Default with respect to the occurrence Securities of the applicable series or any anniversary of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity capacity, an aggregate of 25% or more of the voting securities securities, or of any class of security, of any Personperson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (d)Subsection. 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence dates of any such Event of Default with respect to the Securities of the applicable series and annually in each succeeding year that the Subordinated Securities or any series thereof remain in defaultsuch Event of Default remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datedates. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of the principal of (or premium, if any, on) or interest on any of the Subordinated Securities when and as the same become becomes due and payable payable, and such failure continues for 30 days thereafter, the Trustee shall make a prompt check of its holdings holding 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)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 (d)Subsection; or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b6.13(b), the Trustee shall be or become a creditor of the Company or any other obligor on the Subordinated Securities. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) 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 (d)Company.
Appears in 1 contract
Samples: Indenture (Carnival Corp)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08Section, it shallwith respect to the Securities of any series:
(i) then, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided below in this Section 7.08Section, resign in the manner and with the effect specified in Section 7.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointmentresign, and the Company shall take prompt steps to appoint have a successor appointed in accordance with the manner provided in Section 7.10.6.10;
(bii) In in the event that the Trustee shall fail to comply with the provisions of subsection clause (ai) of this Section 7.08Subsection, the Trustee shall, within ten 10 days after the expiration of such 90-day period, transmit notice of such failure to the Subordinated Securityholders Holders of the Securities of the applicable series in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.7.3(c); and
(ciii) Subject subject to the provisions of Section 6.11 of this Subordinated Indenture5.14, unless the Trustee's ’s duty to resign is stayed as provided below in subsection (f) of this Section 7.08Section, any Holder of the Securities of the applicable series who has been a bona fide Holder of Subordinated such Securities for at least six months may, on such Holder's behalf and on behalf of himself and all other Holders others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee the Trustee, and the appointment of a successor, if such the Trustee fails fails, after written request thereof by such Holder Xxxxxx to comply with the provisions of subsection clause (ai) of this Section 7.08Subsection.
(db) For the purposes of this Section 7.08 the Section, a Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred exists with respect to Subordinated the Securities of such the applicable series and:
(1) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than the applicable series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securitiesoutstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture; provided, provided however, that there shall be excluded from the operation of this paragraph, paragraph this Subordinated Indenture with respect to the Subordinated Securities of any series other than the applicable series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if if
(Ai) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank ranks equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActAct of 1939, unless the Commission shall have found and declared by order pursuant to subsection (bSection 305(b) of or Section 305 or subsection (c307(c) of Section 307 of the Trust Indenture Act, Act of 1939 that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such the applicable series and one or more other series, series or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture or indentures, or or
(Bii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated the Securities of such the applicable series and such other series, series or under this Subordinated Indenture and such other indenture, 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 Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and one of such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated SecuritiesCompany, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities who is currently engaged in the business of underwriting, except that (Ai) one individual may be a director and/or or an executive officer officer, or both, of the Trustee and a director and/or or an executive officer officer, or both, of the Company or any other obligor on the Subordinated SecuritiesCompany, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated SecuritiesCompany; (Bii) 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 officer, or both, of the Trustee and a director of the Company or any other obligor on the Subordinated SecuritiesCompany; and (Ciii) the Trustee may be designated by the Company or by any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d)Subsection, 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such Personspersons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, or is beneficially owned, collectively, by any two or more such Personspersons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), (Ai) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (Bii) ten percent 10% or more of any class of security of an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), five percent 5% or more of the voting securities of any Person 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 Company or any other obligor on the Subordinated SecuritiesCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), ten percent 10% or more of any class of security of any Person person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated SecuritiesCompany;
(9) the Trustee owns owns, on the date of an Event of Default with respect to the occurrence Securities of the applicable series or any anniversary of such Event of Default (exclusive of any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity capacity, an aggregate of 25% or more of the voting securities securities, or of any class of security, of any Personperson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (d)Subsection. 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence dates of any such Event of Default with respect to the Securities of the applicable series and annually in each succeeding year that the Subordinated Securities or any series thereof remain in defaultsuch Event of Default remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datedates. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of the principal of (or premium, if any, on) or interest on any of the Subordinated Securities when and as the same become becomes due and payable payable, and such failure continues for 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)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 (d)Subsection; or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b6.13(b), the Trustee shall be or become a creditor of the Company Company. For purposes of paragraph (1) of this Subsection, and of Sections 5.12 and 5.13, the term “series of securities” and “series” means a series, class or group of securities issuable under an indenture pursuant to whose terms holders of one such series may vote to direct the indenture trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another such series; provided, however, that “series of securities” or “series” shall not include any other obligor on the Subordinated Securitiesseries of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specifications specification of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) Subsection shall not be construed as indicating that the ownership of such percentages of the securities of a Person 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 (d)Subsection.
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Samples: Indenture (Carnival PLC)
Disqualification; Conflicting Interest. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 7.08Section, with respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the Event of Default 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, except as otherwise provided in this Section 7.08, or resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in Section 7.10, 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 appoint a successor in accordance with Section 7.10this Article.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection Subsection (a) of this Section 7.08with respect to the Securities of any series, the Trustee shall, within ten 10 days after the expiration of such 90-day period, transmit by mail to all Holders of Securities of that series, as their names and addresses appear in the Security Register, notice of such failure to the Subordinated Securityholders in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04failure.
(c) Subject to the provisions of Section 6.11 of this Subordinated Indenture, unless the Trustee's duty to resign is stayed as provided in subsection (f) of this Section 7.08, any Holder who has been a bona fide Holder of Subordinated Securities for at least six months may, on such Holder's behalf and on behalf of all other Holders similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor, if such Trustee fails after written request thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 Section, the Trustee shall be deemed to have a conflicting interest with respect to the Subordinated Securities of any series if an Event of Default (exclusive of any period of grace or requirement of notice) has occurred with respect to Subordinated Securities of such series and:if
(1) the Trustee is trustee under this Indenture with respect to the Outstanding 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 Company or any other obligor on the Subordinated Securities are outstanding or is trustee for more than one outstanding series of securities, as hereinafter defined, under a single indenture of the Company or any other obligor on the Subordinated Securitiesoutstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Subordinated Securities issued under this Subordinated Indenture, provided that there shall be excluded from the operation of this paragraph, paragraph this Subordinated Indenture with respect to the Subordinated Securities of any series other than that series Outstanding, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or any other obligor on the Subordinated Securities are outstanding, if if
(Ai) this Subordinated Indenture is and such other indenture or indentures (and all series of securities issued thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are either herein specifically described or hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to subsection (bSection 305(b) of or Section 305 or subsection (c307(c) of Section 307 of the Trust Indenture Act, Act that differences exist between the provisions of this Subordinated Indenture with respect to Subordinated Securities of such that series and one or more other series, series or the provisions of this Subordinated 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 Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and such other indenture or indentures, or or
(Bii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that the trusteeship under this Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and such other indenture, 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 Subordinated Indenture with respect to Subordinated the Securities of such that series and such other series, series or under this Subordinated Indenture and one of such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Company or an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company or any other obligor on the Subordinated SecuritiesCompany, or of an underwriter (other than the Trustee itself) for the Company or any other obligor on the Subordinated Securities who is currently engaged in the business of underwriting, except that (Ai) one individual may be a director and/or or an executive officer officer, or both, of the Trustee and a director and/or or an executive officer officer, or both, of the Company or any other obligor on the Subordinated Securities, but may not be at the same time an executive officer of both the Trustee and the Company or any other obligor on the Subordinated SecuritiesCompany; (Bii) 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 officer, or both, of the Trustee and a director of the Company or any other obligor on the Subordinated SecuritiesCompany; and (Ciii) the Trustee may be designated by the Company or by any other obligor on the Subordinated Securities or by an underwriter for the Company or any other obligor on the Subordinated Securities 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 (d)Subsection, 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 Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such Personspersons; or ten percent 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or any other obligor on the Subordinated Securities or by any director, partner or executive officer thereof thereof, or is beneficially owned, collectively, by any two or more such Personspersons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), (Ai) five percent 5% or more of the voting securities, or ten percent 10% or more of any other class of security, of the Company or any other obligor on the Subordinated Securities, not including the Subordinated Securities issued under this Subordinated Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (Bii) ten percent 10% or more of any class of security of an underwriter for the Company or any other obligor on the Subordinated SecuritiesCompany;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), five percent 5% or more of the voting securities of any Person 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 Company or any other obligor on the Subordinated SecuritiesCompany;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, default (as hereinafter in this Subsection defined), ten percent 10% or more of any class of security of any Person person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company or any other obligor on the Subordinated Securities;Company; or
(9) the Trustee owns owns, on the date of the occurrence of such Event of Default (exclusive of May 15 in any period of grace or requirement of notice) or any anniversary thereof while such Event of Default remains outstanding, calendar year in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity capacity, an aggregate of 25% or more of the voting securities securities, or of any class of security, of any Personperson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (d)Subsection. 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 25% of such voting securities or 25% of any such class of security. Promptly after the date of the occurrence of any such Event of Default and annually May 15 in each succeeding year that the Subordinated Securities or any series thereof remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-above- mentioned capacities as of such dateMay 15. If the Company or any other obligor on the Subordinated Securities fails to make payment in full of the principal of or interest on any of the Subordinated Securities when and as the same become becomes due and payable payable, and such failure continues for 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)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 (d); or
(10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or become a creditor of the Company or any other obligor on the Subordinated SecuritiesSubsection. The specifications specification of percentages in paragraphs (5) to (9), inclusive, of this subsection (d) Subsection shall not be construed as indicating that the ownership of such percentages of the securities of a Person 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 (d)Subsection.
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