Disqualification; Conflicting Interests. (1) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this Indenture. (2) In the event that the Trustee shall fail to comply with the provisions of Subsection (1) of this Section, within ten (10) days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, notice of such failure. (3) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if: (a) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes issued under this Indenture, provided that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if: (i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or (ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures; (b) the Trustee or any of its directors or executive officers is an underwriter for the Company; (c) 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; (d) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity or, subject to the provisions of paragraph (a) of this Subsection, to act as trustee, whether under an indenture or otherwise; (e) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons; (f) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security of the Company not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company; (g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company; (h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company; (i) the Trustee owns, on the date of default upon the Notes or on any anniversary of such default while the default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f), (g) or (h) of this 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 any such default and annually each succeeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f), (g) and (h) of this Subsection; or (j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 3 contracts
Samples: Indenture (PDS Financial Corp), Indenture (PDS Financial Corp), Indenture (PDS Financial Corp)
Disqualification; Conflicting Interests. (1) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2) In the event that the Trustee shall fail to comply with the provisions of Subsection (1) of this Section, within ten (10) days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersDebentureholders, as their names and addresses appear in the Note Debenture Register, notice of such failure.
(3) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:
(a) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debentures issued under this Indenture, provided that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b306(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c) 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;
(d) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity or, subject to the provisions of paragraph (a) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons;
(f) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security of the Company not including the Notes Debentures issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the Notes Debentures or on any anniversary of such default while the default upon the Notes Debentures 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 (f), (g) or (h) of this 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 any such default and annually each succeeding year that the Notes Debentures 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 dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debentures when and as the same 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, 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 (f), (g) and (h) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 3 contracts
Samples: Indenture (United Homes Inc), Indenture (United Homes Inc), Indenture (Paper Warehouse Inc)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, Holders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a) of this Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default or on any anniversary of such default Event of Default while the default upon the Notes 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 (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 not more than 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 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. For the purposes of paragraph (1) of this subsection, the term “series of securities” or “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 Trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another series; provided, that “series of securities” or “series” shall not include any series of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsectionsubsection.
Appears in 3 contracts
Samples: Indenture (Genesee & Wyoming Inc), Subordinated Debt Indenture (Scotts Miracle-Gro Co), Senior Indenture (Magnum Hunter Resources Inc)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, Holders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a) of this Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default (but exclusive of any period of grace or on requirement of notice) or any anniversary of such default Event of Default while the default upon the Notes 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 (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 not more than 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 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 2 contracts
Samples: Indenture (Genesee & Wyoming Inc), Indenture (Genesee & Wyoming Inc)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have, within two years preceding such transmission, filed their names and addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and address appear in the Note Register, notice information preserved at the time by the Trustee in accordance with Section 7.02(a) of such failurethis Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided PROVIDED that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors investors, to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person Person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default or on any anniversary of such default Event of Default while the default upon the Notes 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 personPerson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 not more than 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 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 2 contracts
Samples: Indenture (Hilton Hotels Corp), Indenture (Park Place Entertainment Corp)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining a Responsible Officer of the Trustee ascertains that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c) 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;
(d) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity or, subject to the provisions of paragraph (a) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons;
(f) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security of the Company not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the Notes or on any anniversary of such default while the default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f), (g) or (h) of this 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 any such default and annually each succeeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f), (g) and (h) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.such
Appears in 2 contracts
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 6086.08 with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-—day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign as Trustee with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor Trustee appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection 6.08 with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-—day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, Holders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Register; and
(2) to each Holder of a Debt Security of any series whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a) of this Indenture.
(3c) For the purposes of this SectionSection 6.08, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph of this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default or on any anniversary of such default Event of Default while the default upon the Notes 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 (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 not more than 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 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-—mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. For the purposes of paragraph (1) of this subsection, the term “series of securities” or “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 Trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another series; provided, that “series of securities” or “series” shall not include any series of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsectionsubsection.
Appears in 2 contracts
Samples: Subordinated Debt Indenture (Calgon Carbon Corporation), Subordinated Debt Indenture (MOB Corp)
Disqualification; Conflicting Interests. (1a) If the Indenture Trustee has or shall acquire any conflicting interest, as defined in this Section 608, thenSection, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-90 day period, the Indenture Trustee shall either eliminate such conflicting interest or resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Indenture Trustee shall fail to comply with the provisions of Subsection (1a) of this Section, the Indenture Trustee shall, within ten (10) 10 days after the expiration of such 90-90 day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, notice of such failure.
(3c) For the purposes purpose of this Section, the Indenture Trustee shall be deemed to have a conflicting interest if:if the Notes are in default (as defined herein) and
(a1) the Indenture Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company Trust are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes issued under this Indenture, provided that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company Trust are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and rank equally and such other indenture or indentures are specifically described in this Indenture or are hereafter qualified under the Trust Indenture ActTIA, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act TIA that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Indenture Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company Trust shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Indenture Trustee from acting as such under one of such indentures;
(b) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c) 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;
(d) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that the Trustee may . The following indentures shall be designated by the Company or by any underwriter for the Company deemed 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 (a) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons;
(f) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter be "specifically described" in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security of the Company not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the Notes or on any anniversary of such default while the default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f), (g) or (h) of this 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 any such default and annually each succeeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f), (g) and (h) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b310(b)(iii)(1)(C)(i) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.:
Appears in 2 contracts
Samples: Indenture (Saul B F Real Estate Investment Trust), Indenture (Saul B F Real Estate Investment Trust)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 6086.08 with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign as Trustee with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor Trustee appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection 6.08 with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, Holders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Register; and
(2) to each Holder of a Debt Security of any series whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a) of this Indenture.
(3c) For the purposes of this SectionSection 6.08, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph of this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default or on any anniversary of such default Event of Default while the default upon the Notes 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 (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 not more than 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 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. For the purposes of paragraph (1) of this subsection, the term “series of securities” or “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 Trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another series; provided, that “series of securities” or “series” shall not include any series of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsectionsubsection.
Appears in 2 contracts
Samples: Senior Debt Indenture (Calgon Carbon Corporation), Senior Debt Indenture (MOB Corp)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.8(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have, within two years preceding such transmission, filed their names and addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and address appear in the Note Register, notice information preserved at the time by the Trustee in accordance with Section 7.2(a) of such failurethis Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default or on any anniversary of such default Event of Default while the default upon the Notes 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 (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 not more than 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 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 2 contracts
Samples: Subordinated Indenture (Reinsurance Group of America Inc), Subordinated Indenture (Rga Capital Trust Ii)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 6089.08, thenwith respect to the Notes, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureNine.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection 9.08, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, Holders as their names and addresses appear in the Note Registerregistrar, notice of such failure.
(3c) For the purposes of this SectionSection 9.08, the Trustee shall be deemed to have a conflicting interest with respect to the Notes if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes issued under this IndentureNotes, provided PROVIDED that there shall be excluded from the operation of this paragraph this Indenture with respect to any other indenture or indentures indenture under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture ActTIA, unless the Securities and Exchange Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act TIA that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and with respect to such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and with respect to such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of this Indenture with respect to such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Notes or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 2 contracts
Samples: Indenture (Midamerican Energy Financing Ii), Indenture (Midamerican Energy Financing Ii)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, Holders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.8(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.2(a) of this Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default or on any anniversary of such default Event of Default while the default upon the Notes 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 (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 not more than 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 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 2 contracts
Samples: Junior Subordinated Indenture (Rga Capital Trust Ii), Junior Subordinated Indenture (Reinsurance Group of America Inc)
Disqualification; Conflicting Interests. (1) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this Indenture.
(2) In the event that the Trustee shall fail to comply with the provisions of Subsection (1) of this Section, within ten (10) days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, notice of such failure.
(3) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:
(a) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes issued under this Indenture, provided that there shall be excluded from the operation of this paragraph any indenture or indentures -41- Indenture under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c) 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;
(d) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity or, subject to the provisions of paragraph (a) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons;
(f) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security of the Company not -42- Indenture including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the Notes or on any anniversary of such default while the default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f), (g) or (h) of this 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 any such default and annually each succeeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f), (g) and (h) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 2 contracts
Samples: Indenture (PDS Financial Corp), Indenture (PDS Gaming Corp)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have, within two years preceding such transmission, filed their names and addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and address appear in the Note Register, notice information preserved at the time by the Trustee in accordance with Section 7.02(a) of such failurethis Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided PROVIDED that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors investors, to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person Person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default or on any anniversary of such default Event of Default while the default upon the Notes 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 personPerson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 50 preceding sentence shall not apply, for a period of not more than 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 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 2 contracts
Samples: Indenture (Hilton Hotels Corp), Indenture (Hilton Hotels Corp)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, Holders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a) of this Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph of this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (ac) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default or on any anniversary of such default Event of Default while the default upon the Notes 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 (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 not more than 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 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-above- mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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-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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 2 contracts
Samples: Indenture (Intermedia Communications Inc), Indenture (Intermedia Communications Inc)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 6086.8 with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureVI.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.8(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have, within two years preceding such transmission, filed their names and addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and address appear in the Note Register, notice information preserved at the time by the Trustee in accordance with Section 7.2(a) of such failurethis Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest ifwith respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and:
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default or on any anniversary of such default Event of Default while the default upon the Notes 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 (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 not more than 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 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Samples: Subordinated Indenture (Talx Corp)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenit shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this Section, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders, as their names and addresses appear in the Note Debenture Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:if 55 47
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debentures issued under this Indenture, provided that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Debentures or an underwriter for the Company;
(c3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or to indirect common control with the Company or an underwriter for the Company;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that the Trustee (i) one individual may be designated by the Company a director or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositaryan executive officer, or in any other similar capacity orboth, subject to the provisions of paragraph (a) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any and a director or an executive officer thereofofficer, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons;
(f) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security of the Company not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the Notes or on any anniversary of such default while the default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 25% or more of the voting securities, or of any class of securityboth, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (f), (g) or (h) of this 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 any such default and annually each succeeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f), (g) and (h) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.the
Appears in 1 contract
Samples: Indenture (Maxtor Corp)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, Holders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a) of this Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security security, to the knowledge of the Trustee, of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default (but exclusive of any period of grace or on requirement of notice) or any anniversary of such default Event of Default while the default upon the Notes 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 (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 not more than 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 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. For the purposes of paragraph (1) of this subsection, the term “series of securities” or “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 Trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another series; provided, that “series of securities” or “series” shall not include any series of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsectionsubsection.
Appears in 1 contract
Samples: Subordinated Debt Indenture (Bedford Property Investors Inc/Md)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities Of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series, if:
(ai) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided provided, however, that there shall be excluded from the operation of this paragraph (x) this Indenture with respect to the Securities of any series other than that series (y) or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(iA) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act Act, that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or;
(iiB) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(bii) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(ciii) 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;
(div) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(ev) 10% or more More of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or Or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(fvi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities of any series for which the Trustee is acting as such issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(gvii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, ; owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(hviii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a any class of security of for any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;; or
(iix) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos interviews 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 (f6), (g7) or (h) 8) of this 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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, 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 (f)6) , (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 1 contract
Samples: Indenture (FNB Corp/Fl/)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 6088.8, thenwith respect to the Notes, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureVIII.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection 8.8, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, Holders as their names and addresses appear in the Note Registerregistrar, notice of such failure.
(3c) For the purposes of this SectionSection 8.8, the Trustee shall be deemed to have a conflicting interest with respect to the Notes if:
(ai) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes issued under this IndentureNotes, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to any other indenture or indentures indenture under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(iA) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture ActTIA, unless the Securities and Exchange Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act TIA that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and with respect to such other indenture or indentures, or
(iiB) the Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and with respect to such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of this Indenture with respect to such other indenture or indentures;
(bii) the Trustee or any of its directors or executive officers is an obligor upon the Notes or an underwriter for the Company;
(ciii) 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;
(div) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (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 or an executive officer, or both, of the Trustee and a director of the Company; and (C) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (ai) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(ev) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(fvi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (iA) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (iiB) 10% or more of any class of security of an underwriter for the Company;
(gvii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(hviii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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
(iix) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (fvi), (gvii) or (hviii) of this 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (fvi), (gvii) and (hviii) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (ev) to (iix), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (ciii) or (gvii) of this Subsection.
Appears in 1 contract
Samples: Indenture (Mge Energy Inc)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608, with respect to the Debt Securities of any series then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)this Section) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below in this Section, resign with respect to the Debt Securities of such series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this Indentureherein.
(21) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, transmit, in the Trustee shall transmit by mail manner and to the extent provided in Section 703(c), to all Noteholders, as their names and addresses appear in the Note Register, Holders of Debt Securities of such series notice of such failure.
(32) Subject to the provisions of Section 514, unless the Trustee's duty to resign is stayed as provided in Subsection (f) of this Section, any Holder who has been a bona fide Holder of Debt Securities of any series referred to in Subsection (a) of this Section for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of 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.
(c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if a default (under the terms of this Indenture), but exclusive of any period of grace or requirement of notice, has occurred with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series, the indenture between the Company and the Trustee dated as of June 15, 1984, as supplemented and amended from time to time, under which the Company's Floating Rate Subordinated Capital Notes due August 1, 1996, Floating Rate Subordinated Capital Notes due July, 1996, Subordinated Auction Rate Capital Notes due May 1999, Floating Rate Subordinated Capital Notes Due October, 1999, 9.75% Subordinated Notes due July 1, 2000 and 9.70% Subordinated Notes due August 1, 2000 were issued, and any other indenture or indentures hereafter qualified under the Trust Indenture Act under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:and
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Actrank equally, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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;
(i9) the Trustee owns, on the date a default under this Indenture (but exclusive of default any period of grace or requirement of notice) has occurred upon the Notes Debt Securities of any series or on any anniversary of such default while the such default upon the Notes such Debt Securities 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 (f6), (g7) or (h) 8) of this Subsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed 25% of such voting securities or 25% of any such class of security. Promptly after the date dates of any such default Event of Default upon the Debt Securities of any series and annually in each succeeding year that the Notes remain in defaultsuch Event of Default upon such Debt Securities continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment payments in full of the principal of (or premium, if any) ), or interest on on, any of the Notes Debt Securities or coupons when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act613(b), the Trustee shall be or shall become a creditor of the Company. For purposes of paragraph (1) of this Subsection, and of Sections 512 and 513, the term "series" means a series, class or group of securities issuable under an indenture or this Indenture pursuant to whose terms holders of one such series may vote to direct the trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another such series; provided, that "series" shall not include any series of securities issuable under an indenture (including any series of Debt Securities issuable under this Indenture) if all such series rank equally and are wholly unsecured. The specification specifications of percentages in on paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes purpose of paragraph (c3) or (g7) of this Subsection.
Appears in 1 contract
Samples: Indenture (Bankamerica Corp/De/)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of, that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any series other than that series or other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures (or any series of securities issuable thereunder) which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(c3) the Trustee directly or indirectly controls or controls, is directly or indirectly controlled by by, or is under direct or indirect common control with the Company or an underwriter for the Company;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business busi ness of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), ) 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes Securities of such series or on any anniversary of such default while the such default upon the Notes remains outstandingshall be continuing, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservatorxxxxxx vator, 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 (f6), (g7) or (h) 8) of this Subsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary xxxxx mentary 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 any such default upon the Securities of such series and annually in each succeeding year that the Notes Securities of such series 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 datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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-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, 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 (f6), (g7) and (h) 8) of this Subsection; or.
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or and (6) of Section 311(b) of the Trust Indenture Act6.13(b), the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Samples: Indenture (Tribune Co)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.08(b) with respect to Registered Securities shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have, within two years preceding such transmission, filed their names and addresses with the Trustee for such series for that purpose;
(3) to each Holder of a Debt Security of any series whose name and address appear in the Note Register, notice information preserved at the time by the Trustee in accordance with Section 7.02(a) of such failurethis Indenture; and
(4) to the Company. Notice given pursuant to this Section 6.08(b) with respect to Bearer Securities shall be transmitted in the manner set forth in Section 1.05.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that the Trustee (i) one individual may be designated by the Company a director or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositaryan executive officer, or in any other similar capacity orboth, subject to the provisions of paragraph (a) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any and a director or an executive officer thereofofficer, or 20% or more of such voting securities is beneficially ownedboth, collectively, by any two or more of such persons; or 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons;
(f) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security of the Company but may not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the Notes or on any anniversary of such default while the default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f), (g) or (h) of this 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 any such default and annually each succeeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f), (g) and (h) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.be
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608(certain terms being defined and percentages calculated as hereinafter stated in this Section), then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before within the end of ninety (90) day period immediately following the date on which the Trustee ascertains that it has such conflicting interest, it shall, within such ninety (90-) day period, the Trustee shall either eliminate such conflicting interest or resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection paragraph (1a) of this Sectionabove the Trustee shall, within ten (10) days after the expiration of such ninety (90-) day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, notice of such failurefailure to the Holders in the manner and to the extent provided in Section 8.3(c).
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:if there is an Event of Default and
(ai) 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 are outstanding, or is trustee for more than one outstanding series of securities, as hereafter defined, under a single indenture of the Company, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Obligations issued under this Indenture, provided PROVIDED that there shall be excluded from the operation of this paragraph clause other series under this Indenture and any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) if the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures or under more than one outstanding series under a single 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 one of such indentures;indentures or with respect to such series; or
(bii) the Trustee or any of its directors or executive officers is an underwriter for the Company;; or
(ciii) 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
(div) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (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 or an executive officer, or both, of the Trustee and a director of the Company; and (C) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph clause (ai) of this Subsectionabove, to act as trustee, whether under an indenture or otherwise;; or
(ev) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;; or
(fvi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection paragraph defined), (iA) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Obligations issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (iiB) 10% or more of any class of security of an underwriter for the Company;; or
(gvii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection paragraph defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;; or
(hviii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection paragraph defined), 10% or more of a 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
(iix) the Trustee owns, on the date of default upon the Notes occurrence of an Event of Default (or on any occurrence that would constitute an Event of Default upon the lapse of time or giving of notice) or any anniversary of such default date while the default upon the Notes such Event of Default or occurrence 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 clauses (fvi), (gvii) or (hviii) of this Subsectionabove. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two (2) 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 any Event of Default (or other occurrence that would constitute an Event of Default upon the date lapse of any such default time or giving of notice) and annually in each succeeding year that the Notes remain in defaultany Event of Default or other occurrence remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (of, or the premium, if any) , or interest on on, any of the Notes Obligations when and as the same becomes due and payable, and such failure continues for 30 thirty (30) days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such thirty (30-) day period, and after such date, notwithstanding the foregoing provisions of this paragraphclause, 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 clauses (fvi), (gvii) and (hviii) of this Subsectionabove; or
(jx) except under the circumstances described in paragraphs (1Section 7.13(b), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 6089.14, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined for purposes of this Section 9.14, a default shall mean a default in Section 608(3)payment of principal which shall have continued for 30 days or more and shall not have been cured) 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 it shall either eliminate such conflicting interest or resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureIX.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection 9.14, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this SectionSection 9.14, the Trustee shall be deemed to have a conflicting interest ifif the Bonds are in default and:
(ai) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of any obligor on the Company Bonds are outstandingoutstanding unless (A) the Bonds are collateral trust notes under which the only collateral consists of securities issued under such other indenture, unless (B) such 144 other indenture is a collateral trust indenture under which the only collateral consists of Notes Bonds issued under this IndentureIndenture or (C) such obligor has no substantial unmortgaged assets and is engaged primarily in the business of owning, or of owning and developing and/or operating, real estate, and this Indenture and such other indenture are secured by wholly separate and distinct parcels of real estate, provided that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such series under this Indenture and such other indenture or indentures, orIndenture;
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b) the Trustee or any of its directors or executive officers is an underwriter for an obligor on the CompanyBonds;
(c) 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;
(diii) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of any obligor on the CompanyBonds, or of an underwriter (other than the Trustee itself) for the Company such obligor who is currently engaged in the business of underwriting, except that (A) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of an obligor on the Bonds but may not be at the same time an executive officer of both the Trustee and such obligor, (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 or an executive officer, or both, of the Trustee and a director of an obligor on the Bonds, and (C) the Trustee may be designated by an obligor on the Company Bonds or by any underwriter for the Company such obligor to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity orcapacity, or subject to the provisions of paragraph (ai) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(eiv) 10% or more of the voting securities of the Trustee is are beneficially owned either by any obligor on the Company Bonds or by any director 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 personsPersons; or 10% or more of the voting securities of the Trustee is are beneficially owned either by an underwriter for any obligor on the Company Bonds or by any director, partner or executive officer of any such underwriterthereof, or is are beneficially owned, collectively, owned collectively by any two or more of such personsPersons;
(fv) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, (iA) 5% or more of the voting securities, or 10% or more of any other class of security security, of any obligor on the Company Bonds not including the Notes Bonds issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (iiB) 10% or more of any class of security of an underwriter for any obligor on the CompanyBonds;
(gvi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, any obligor on the CompanyBonds;
(hvii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a any class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of any obligor on the CompanyBonds;
(iviii) the Trustee owns, on the date of default upon the Notes Bonds or on any anniversary of such default while the such default upon the Notes Bonds 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 paragraphs (fv), (gvi) or (hvii) of this Subsectionsubsection. 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 immediately preceding sentence shall not apply, apply for a period of not more than two years from the date of such acquisition, 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 dates of any such default upon the Bonds and annually in each succeeding year that the Notes Bonds 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 dates. If any obligor on the Company Bonds fails to make payment in full of the principal of (or of, premium, if any) , or interest on any of the Notes Bonds when and as the same 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 30day period, and and, after such date, notwithstanding the foregoing provisions of this 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 (fv), (gvi) and (hvii) of this Subsectionsubsection; oror 146
(jix) except under the circumstances described in paragraphs (1), (3), (4), (5) Section 9.3 or (6) of Section 311(b) of the Trust Indenture Act9.5, the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsectionobligor.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have, within two years preceding such transmission, filed their names and addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and address appear in the Note Register, notice information preserved at the time by the Trustee in accordance with Section 7.02(a) of such failurethis Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided PROVIDED that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors investors, to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person Person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default or on any anniversary of such default Event of Default while the default upon the Notes 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 personPerson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 not more than 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 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. For the purposes of paragraph (1) of this subsection, the term “series of securities” or “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 Trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another series; PROVIDED, that “series of securities” or “series” shall not include any series of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsectionsubsection.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, within 90 days after ascertaining that it has such conflicting interest, and if the default (default, as defined in Section 608(3)) this Section, to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign in the manner and with the effect hereinafter specified in this Article respect to that series, and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureSection 6.10.
(2b) In the event that If the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of that series, as their names and addresses appear in the Note Security Register, notice of such failurefailure and, subject to the provisions of Section 5.14, unless the Trustee's duty to resign is stayed as provided below, any Holder who has been a bona fide holder of Securities for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor, if the Trustee fails, after written request thereof by such Holder to comply with the provisions of Subsection (a). Except in the case of a default in the payment of the principal of or interest on any Security, or in the payment of any sinking or purchase fund installment, the Trustee shall not be required to resign as provided by this Section if the Trustee shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that (i) the default under the Restated Indenture may be cured or waived during a reasonable period and under the procedures described in such application, and (ii) a stay of the Trustee's duty to resign will not be inconsistent with the interests of the Holders of the Securities. The filing of such an application shall automatically stay the performance of the duty to resign until the Commission orders otherwise. Any resignation of the Trustee shall become effective only upon the appointment of a successor Trustee in accordance with the provisions of Section 6.10 and such successor's acceptance of such an appointment.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Securities of any series if the Securities of such series are in default (as determined in accordance with the provisions of Section 5.01, but exclusive of any period of grace or requirement of notice) and
(a1) the Trustee is trustee under this Restated 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Restated Indenture, provided provided, that there shall be excluded from the operation of this paragraph this Restated Indenture with respect to the Securities of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Restated Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b3.05(b) or Section 307(13.07(c) of the Trust Indenture Act that differences exist between the provisions of this Restated Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Restated Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Restated Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Restated Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositarydepository, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of or the voting securities of the Trustee is beneficially owned either by the Company or by any director an director, partner or executive officer thereof, or 20% or more of such voting securities is if beneficially owned, collectively, by any two or more of such persons; or 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Restated Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;voting
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a any class of security of or any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i9) the Trustee owns, on the date of default upon (as determined in accordance with the Notes provisions of Section 5.01, but exclusive of any period of grace or requirement of notice) or on any anniversary of such default while the such default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 paragraphs (f6), (g7) or (h) 8) of this 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 dates of any such default and annually in each succeeding year that the Notes Securities 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 dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), - 45 - 49 (5) or (6) of Section 311(b) of the Trust Indenture Act6.13(b), the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Samples: Restated Indenture (Allied Waste North America Inc/De/)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 6089.08, thenwith respect to the Notes, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureNine.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection 9.08, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, Holders as their names and addresses appear in the Note Registerregistrar, notice of such failure.
(3c) For the purposes of this SectionSection 9.08, the Trustee shall be deemed to have a conflicting interest if:
with respect to the Notes if (a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes issued under this IndentureNotes, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to any other indenture or indentures indenture under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
if (i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture ActTIA, unless the Securities and Exchange Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act TIA that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and with respect to such other indenture or indentures, or
or (ii) the Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and with respect to such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of this Indenture with respect to such other indenture or indentures;
; (b2) the Trustee or any of its directors or executive officers is an obligor upon the Notes or an underwriter for the Company;
; (c3) 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;
; (d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
; (e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
; (f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
; (g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
; (h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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 (i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection. For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection only, (i) the terms "security" and "securities" shall include only such securities as are generally known as corporate securities, but shall not include any note or other evidence of indebtedness issued to evidence an obligation to repay moneys lent to a person by one or more banks, trust companies or banking firms, or any certificate of interest or participation in any such note or evidence of indebtedness; (ii) an obligation shall be deemed to be "in default" when a default in payment of principal shall have continued for 30 days or more and shall not have been cured; and (iii) the Trustee shall not be deemed to be the owner or holder of (A) any security which it holds as collateral security, as trustee or otherwise, for an obligation which is not in default as defined in clause (ii) above, or (B) any security which it holds as collateral security under this Indenture, irrespective of any default hereunder, or (C) any security which it holds as agent for collection, or as custodian, escrow agent or depositary, or in any similar representative capacity.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenit shall, within 90 ninety (90) days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureVIII.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this Section, the Trustee shall, within ten (10) days after the expiration of such 90-day period, the Trustee shall transmit give Notice by mail Mail of such failure to all Noteholders, as their names holders and addresses appear in the Note Register, notice of such failureCredit Bank.
(3c) For the purposes of this Section, Section the Trustee shall be deemed to have a conflicting interest if:
(ai) the 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Bonds issued under this Indenture, provided that there shall be excluded from the operation of this paragraph the Indenture dated as of October 1, 1986 between the Company and the Trustee, under which there were issued and are outstanding the Company's 8% Debentures due 1991 and 10% Debentures due 2018, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(iA) this This Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Actunsecured, unless the Securities and Exchange Commission (the "Commission") shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act of 1939, that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, ; or
(iiB) the The Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(bii) the The Trustee or any of its directors or executive officers is an obligor upon the Bonds or an underwriter for the Company;
(ciii) the 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;
(div) the The Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (A) one (1) individual may be a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (B) if and so long as the number of directors of the Trustee in office is more than nine (9), one (1) additional individual may be a director or an executive officer, or both, of the Trustee and a director of the Company; and (C) the Trustee may be designated by the Company or by any an underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositarydepository, or in any other similar capacity capacity, or, subject to the provisions of or paragraph (a) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(ev) Ten percent (10% %) or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director director, partner, or executive officer thereof, or twenty percent (20% %) or more of such voting securities is beneficially owned, collectively, collectively by 87 any two or more of such persons; or ten percent (10% %) or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two (2) or more of such persons;
(fvi) the The Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (iA) five percent (5% %) or more of the voting securities, or ten percent (10% %) or more of any other class of security security, of the Company Company, not including the Notes Bonds issued under this Indenture and securities issued under any other indenture under which the Trustee is also the trustee, or (iiB) ten percent (10% %) or more of any class of security of an underwriter for the Company;
(gvii) the The Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), five percent (5% %) or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent (10% %) or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(hviii) the The Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), ) ten percent (10% %) or more of a any class of security of any person who, to the knowledge of the Trustee, owns fifty percent (50% %) or more of the voting securities of the Company;; or
(iix) the The Trustee owns, on the date of default upon the Notes or on June 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent (25% %) or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph paragraphs (fvi), (gvii) or (hviii) of this Subsectionsubsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two (2) years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five percent (25% %) of such voting securities or twenty-five percent (25% %) of any such class of security. Promptly after the date of any such default and annually June 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesJune 15. If the Company fails to make payment in full of under the Agreement for the principal of (of, or the premium, if any) , or interest on on, any of the Notes Bonds when and as the same becomes due and payable, and such failure continues for 30 thirty (30) days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30-day period, and after such date, notwithstanding the foregoing provisions of this paragraph, 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 (fvi), (gvii) and (hviii) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Companysubsection. The specification of percentages in paragraphs (ev) to (i), ix) inclusive, of this Subsection subsection, shall not be construed as indicating that the ownership of such percentage 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 (ciii) or (gvii) of this Subsectionsubsection.
Appears in 1 contract
Samples: Indenture of Trust (Enron Corp/Or/)
Disqualification; Conflicting Interests. (1) A. If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608(certain terms being defined and percentages calculated as hereinafter stated in this Section), then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before within the end of ninety (90) day period immediately following the date on which the Trustee ascertains that it has such conflicting interest, it shall, within such ninety (90-) day period, the Trustee shall either eliminate such conflicting interest or resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2) B. In the event that the Trustee shall fail to comply with the provisions of Subsection (1) subsection A of this SectionSection the Trustee shall, within ten (10) days after the expiration of such ninety (90-) day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, notice of such failurefailure to the Holders in the manner and to the extent provided in Section 8.03(C).
(3) C. For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:if there is an Event of Default and
(a1) 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 are outstanding, or is trustee for more than one outstanding series of securities, as hereafter defined, under a single indenture of the Company, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Obligations issued under this Indenture, provided PROVIDED that there shall be excluded from the operation of this paragraph other series under this Indenture and any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) if the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures or under more than one outstanding series under a single 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 one of such indentures;indentures or with respect to such series; or
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;; or
(c3) 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
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (a) one individual may be a director or an executive officer or both of the Trustee and a director or an executive officer or both of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (b) if and so long as the number of directors of the Trustee in office is more than nine (9), one (1) additional individual may be a director or an executive officer or both of the Trustee and a director of the Company; and (c) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;; or
(e5) ten percent (10% %) or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director director, partner, or executive officer thereof, or twenty percent (20% %) or more of such voting securities is beneficially owned, collectively, by any two (2) or more of such persons; or ten percent (10% %) or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two (2) or more such persons;; or
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (ia) five percent (5% %) or more of the voting securities, or ten percent (10% %) or more of any other class of security security, of the Company not including the Notes Obligations issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (iib) ten percent (10% %) or more of any class of security of an underwriter for the Company;; or
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), five percent (5% %) or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent (10% %) or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;; or
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), ten percent (10% %) or more of a any class of security of any person who, to the knowledge of the Trustee, owns fifty percent (50% %) or more of the voting securities of the Company;; or
(i9) the Trustee owns, on the date of default upon the Notes occurrence of an Event of Default (or on any occurrence that would constitute an Event of Default upon the lapse of time or giving of notice) or any anniversary of such default date while the default upon the Notes such Event of Default or occurrence remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent (25% %) or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (f6), (g7) or (h) 8) of this Subsectionsubsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two (2) years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty- five percent (25% %) of such voting securities or twenty-five percent (25% %) of any such class of security. Promptly after any Event of Default (or other occurrence that would constitute an Event of Default upon the date lapse of any such default time or giving of notice) and annually in each succeeding year that the Notes remain in defaultany Event of Default or other occurrence remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-above- mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (of, or the premium, if any) , or interest on on, any of the Notes Obligations when and as the same becomes due and payable, and such failure continues for 30 thirty (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 thirty (30-) day period, and after such date, notwithstanding the foregoing provisions of this 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1subsection 7.13(B), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, Holders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a) of this Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt 42 Senior Indenture Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the Notes or on any anniversary of such default while the default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f), (g) or (h) of this 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 any such default and annually each succeeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f), (g) and (h) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) 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 47 55 eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have, within two years preceding such transmission, filed their names and addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and address appear in the Note Register, notice information preserved at the time by the Trustee in accordance with Section 7.02(a) of such failurethis Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c) 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;
(d) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity or, subject to the provisions of paragraph (a) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons;
(f) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security of the Company not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the Notes or on any anniversary of such default while the default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f), (g) or (h) of this 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 any such default and annually each succeeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f), (g) and (h) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.Indenture
Appears in 1 contract
Samples: Indenture (Prison Realty Trust Inc)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 6089.08, thenwith respect to the Notes, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureNine.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection 9.08, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, Holders as their names and addresses appear in the Note Registerregistrar, notice of such failure.
(3c) For the purposes of this SectionSection 9.08, the Trustee shall be deemed to have a conflicting interest with respect to the Notes if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes issued under this IndentureNotes, provided PROVIDED that there shall be excluded from the operation of this paragraph this Indenture with respect to any other indenture or indentures indenture under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture ActTIA, unless the Securities and Exchange Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act TIA that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and with respect to such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and with respect to such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of this Indenture with respect to such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Notes or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this 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 any such default and annually May 15 in each succeeding year that the Notes 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 datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided PROVIDED that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608(certain terms being defined and percentages calculated as hereinafter stated in this Section), then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before within the end of ninety (90) day period immediately following the date on which the Trustee ascertains that it has such conflicting interest, it shall, within such ninety (90-) day period, the Trustee shall either eliminate such conflicting interest or resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1) subsection A of this SectionSection the Trustee shall, within ten (10) days after the expiration of such ninety (90-) day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, notice of such failurefailure to the Holders in the manner and to the extent provided in Section 8.03(C).
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:if there is an Event of Default and
(ai) 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 are outstanding, or is trustee for more than one outstanding series of securities, as hereafter defined, under a single indenture of the Company, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Obligations issued under this Indenture, provided PROVIDED that there shall be excluded from the operation of this paragraph other series under this Indenture and any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) if the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures or under more than one outstanding series under a single 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 one of such indentures;indentures or with respect to such series; or
(bii) the Trustee or any of its directors or executive officers is an underwriter for the Company;; or
(ciii) 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
(div) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (a) one individual may be a director or an executive officer or both of the Trustee and a director or an executive officer or both of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (b) if and so long as the number of directors of the Trustee in office is more than nine (9), one (1) additional individual may be a director or an executive officer or both of the Trustee and a director of the Company; and (c) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;; or
(ev) ten percent (10% %) or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director director, partner, or executive officer thereof, or twenty percent (20% %) or more of such voting securities is beneficially owned, collectively, by any two (2) or more of such persons; or ten percent (10% %) or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two (2) or more such persons;; or
(fvi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (ia) five percent (5% %) or more of the voting securities, or ten percent (10% %) or more of any other class of security security, of the Company not including the Notes Obligations issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (iib) ten percent (10% %) or more of any class of security of an underwriter for the Company;; or
(gvii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), five percent (5% %) or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent (10% %) or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;; or
(hviii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), ten percent (10% %) or more of a any class of security of any person who, to the knowledge of the Trustee, owns fifty percent (50% %) or more of the voting securities of the Company;; or
(iix) the Trustee owns, on the date of default upon the Notes occurrence of an Event of Default (or on any occurrence that would constitute an Event of Default upon the lapse of time or giving of notice) or any anniversary of such default date while the default upon the Notes such Event of Default or occurrence remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent (25% %) or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (f6), (g7) or (h) 8) of this Subsectionsubsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two (2) years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five percent (25% %) of such voting securities or twenty-five percent (25% %) of any such class of security. Promptly after any Event of Default (or other occurrence that would constitute an Event of Default upon the date lapse of any such default time or giving of notice) and annually in each succeeding year that the Notes remain in defaultany Event of Default or other occurrence remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (of, or the premium, if any) , or interest on on, any of the Notes Obligations when and as the same becomes due and payable, and such failure continues for 30 thirty (30) days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such thirty (30-) day period, and after such date, notwithstanding the foregoing provisions of this 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(jx) except under the circumstances described in paragraphs (1subsection 7.13(B), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Samples: Supplemental Indenture (Old Dominion Electric Cooperative)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, Section the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series, if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officers or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of mote xx such persons; or 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the 32 45 Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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, 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 (f6), (g7) and (h) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) 8) of this Subsection.
Appears in 1 contract
Samples: Indenture (Suntrust Banks Inc)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining a Responsible Officer of the Trustee ascertains that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, oror 46 57
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), 5% or more of the voting securities of any person who, to the actual knowledge of a Responsible Officer of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), 10% or more of a any class of security of any person who, to the actual knowledge of a Responsible Officer of the Trustee, owns 50% or more of the voting securities of the Company;; or
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Companysubsection. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsectionsubsection.
Appears in 1 contract
Samples: Indenture (SSBH Capital Iv)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-90- day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of, that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any series other than that series or other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures (or any series of securities issuable thereunder) which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(c3) the Trustee directly or indirectly controls or controls, is directly or indirectly controlled by by, or is under direct or indirect common control with the Company or an underwriter for the Company;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner -46- or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), ) 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes Securities of such series or on any anniversary of such default while the such default upon the Notes remains outstandingshall be continuing, 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 (f6), (g7) or (h) 8) of this 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 any such default upon the Securities of such series and annually in each succeeding year that the Notes Securities of such series 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 datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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-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, 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 (f6), (g7) and (h) 8) of this Subsection; or.
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or and (6) of Section 311(b) of the Trust Indenture Act6.13(b), the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Samples: Trust Indenture (Tribune Co)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if unless the default (as defined in Section 608(3)Subsection (d)(7) of this Section) to which such conflicting interest relates has not shall have been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided in this Section, resign with respect to the Securities of such series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, notice of such failurefailure to the Holders of such series in the manner and to the extent required by Section 5.04(c) and, if any unregistered Securities are then Outstanding, shall publish notice of such failure at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York or Chicago, Illinois.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest ifwith respect to the Securities of any series if the Securities of such series are in default and:
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any other series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph paragraph, this indenture with respect to the Securities of any other series and such other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally, and such other indenture or indentures are hereafter qualified under the Trust Indenture ActAct of 1939, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to Securities of such series, the provisions of the Outstanding Securities of such series and the Outstanding Securities of one or more other series and one or more other series or the provisions of such other indenture or indentures (or any series of securities issuable thereunder) which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, proving on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of such series and such other series or such other indenture or indentures (or with respect to more than one outstanding series under such other indenture or indentures) is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of such series and such other series or under such other indenture or indentures (or with respect to more than one outstanding series under such other indenture or indentures);
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph Subsection (ac)(1) of this Subsectionabove, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 (as defined in Subsection (d)(3) of this Section); or 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes Securities of such series or on any anniversary of such default while the such default upon the Notes remains outstandingshall be continuing, 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 (f6), (g7) or (h) 8) of this 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 any such default upon the Securities of such series and annually in each succeeding year that the Notes Securities of such series remain in default, the Trustee shall make a check of its holdings of such securities Securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or and (6) of Section 311(b) of the Trust Indenture Act7.14(b), the Trustee shall be or shall become a creditor of the Company. For the purposes of paragraph (1) of this Subsection, and Sections 6.12 and 6.13, the term “series of securities” or “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 that “series of securities” or “series” shall not include any series of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 1 contract
Samples: First Supplemental Indenture (Pepsiamericas Inc/Il/)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series if:
(a1) 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 the Guarantor are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided that there shall be -------- excluded from the operation of this paragraph this Indenture with respect to the Securities of any series other than that series or any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or the Guarantor are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the CompanyCompany or the Guarantor;
(c3) 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 the Guarantor or an underwriter for the CompanyCompany or the Guarantor;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the CompanyCompany or the Guarantor, or of an underwriter (other than the Trustee itself) for the Company or the Guarantor who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company or the Guarantor; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company or the Guarantor; and (iii) the Trustee may be designated by the Company or the Guarantor or by any underwriter for the Company or the Guarantor to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, ; or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or the Guarantor or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or the Guarantor or by any director, partner director or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company or the Guarantor not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the CompanyCompany or the Guarantor;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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;Company or the Guarantor; or
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this 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 any such default and annually May 15 in each succeeding year that the Notes 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 datesMay 15. If the Company or the Guarantor fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 1 contract
Samples: Indenture (Hilfiger Tommy Corp)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided PROVIDED that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for f or the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 60810.8, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined for purposes of this Section 10.8, a default means a default in Section 608(3)payment of principal which shall have continued for thirty days or more and shall not have been cured) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-90 day period, the Trustee it shall either eliminate such conflicting interest or resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this Indenture.X;
(2b) In the event that If the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection 10.8, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersBondholders, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this SectionSection 10.8, the Trustee shall be deemed to have a conflicting interest ifif the Bonds are in default and:
(ai) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of any obligor on the Company Bonds are outstandingoutstanding unless (A) the Bonds are collateral trust notes under which the only collateral consists of securities issued under such other indenture, unless (B) such other indenture is a collateral trust indenture under which the only collateral consists of Notes Bonds issued under this IndentureIndenture or (C) such obligor has no substantial unmortgaged assets and is engaged primarily in the business of owning, provided or of owning and developing and/or operating, real estate, and this Indenture and such other indenture are secured by wholly separate and distinct parcels of real estate; provided, that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such series under this Indenture and such other indenture or indentures, orIndenture;
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b) the Trustee or any of its directors or executive officers is an underwriter for an obligor on the CompanyBonds;
(ciii) the Trustee directly or indirectly controls or controls, is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for an obligor on the CompanyBonds;
(div) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of any obligor on the Company, Bonds or of an underwriter (other than the Trustee itself) for the Company such obligor who is currently engaged in the business of underwriting, except that (A) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of an obligor on the Bonds but may not be at the same time an executive officer of both the Trustee and such obligor; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be director or an executive officer, or both, of the Trustee and a director of an obligor on the Bonds; and (C) the Trustee may be designated by an obligor on the Company Bonds or by any underwriter for the Company such obligor to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, or in any other similar capacity orcapacity, or subject to the provisions of paragraph (ai) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(ev) 10% or more of the voting securities of the Trustee is beneficially owned either by any obligor on the Company Bonds or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for any obligor on the Company Bonds or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, owned collectively by any two or more such persons;
(fvi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, (iA) 5% or more of the voting securities, or 10% or more of any other class of security security, of any obligor on the Company Bonds not including the Notes Bonds issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (iiB) 10% or more of any class of security of an underwriter for any obligor on the CompanyBonds;
(gvii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, any obligor on the CompanyBonds;
(hviii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a any class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of any obligor on the CompanyBonds;
(iix) the Trustee owns, on the date of default upon the Notes Bonds or on any anniversary of such default while the such default upon the Notes Bonds 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 paragraphs (fvi), (gvii) or (hviii) of this Subsectionsubsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included themsuch securities, the provisions of the immediately preceding sentence shall not apply, apply for a period of not more than two years from the date of such acquisition, 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 dates of any such default upon the Bonds and annually in each succeeding year that the Notes Bonds 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 dates. If any obligor on the Company Bonds fails to make payment in full of the principal of (of, or the premium, if any) , or interest on on, any of the Notes Bonds when and as the same 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, 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 (fvi), (gvii) and (hviii) of this Subsectionsubsection; or
(jx) except under the circumstances described in paragraphs Section 10.13(b) (1i), (3iii), (4iv), (5v) or (6) of Section 311(b) of the Trust Indenture Actvi), the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsectionobligor.
Appears in 1 contract
Samples: Trust Indenture (Aes Ironwood LLC)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Debentures of any series, and if the default to which such conflicting interest relates has not been cured, duly waived or otherwise eliminated, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 it shall either eliminate such conflicting interest interest, except as otherwise provided herein, or resign with respect to the Debentures of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have promptly appoint a successor appointed Successor Trustee in the manner provided in this Indentureherein.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debentures of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail mail, first class postage prepaid, to all NoteholdersHolders of Debentures of that series, as their names and addresses appear in the Note Debenture Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest ifwith respect to the Debentures of any series if a default has occurred and is continuing and:
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debentures 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debentures issued under this Indenture, provided PROVIDED that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debentures of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures 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 Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Debentures of that series and one or more other series or the provisions of such other indenture or indentures (or such series) which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debentures of that series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debentures of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debentures of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for of the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company, but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any an underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositarydepository, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such personsPersons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company Company, not including the Notes Debentures issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person Person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes Debentures of any series or on any anniversary of such default while the such default upon the Notes Debentures issued under this Indenture 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 personPerson, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (f6), (g7) or (h) 8) of this 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 dates of any such default upon the Debentures issued under this Indenture and annually in each succeeding year that the Notes Debentures issued under this Indenture 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 dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest interest, if any, on any of the Notes Debentures when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Actthis Subsection, the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Samples: Indenture (Utilicorp United Inc)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608, with respect to the Debt Securities of any series then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)this Section) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below in this Section, resign with respect to the Debt Securities of such series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this Indentureherein.
(21) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, transmit, in the Trustee shall transmit by mail manner and to the extent provided in Section 703(c), to all Noteholders, as their names and addresses appear in the Note Register, Holders of Debt Securities of such series notice of such failure.
(32) Subject to the provisions of Section 514, unless the Trustee's duty to resign is stayed as provided in Subsection (f) of this Section, any Holder who has been a bona fide Holder of Debt Securities of any series referred to in Subsection (a) of this Section for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of 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.
(c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if a default (under the terms of this-Indenture), but exclusive of any period of grace or requirement of notice, has occurred with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph (A) this Indenture with respect to the Debt Securities of any series other than that series, (B) the indenture between the Company and the Trustee dated as of June 15, 1984, as supplemented and amended from time to time, under which the Company's Floating Rate Subordinated Capital Notes due August 1, 1996, Floating Rate Subordinated Capital Notes due July, 1996, Subordinated Auction Rate Capital Notes due May 1999, Floating Rate Subordinated Capital Notes Due October, 1999, 9.75% Subordinated Notes due July 1, 2000 and 9.70% Subordinated Notes due August 1, 2000 were issued, (C) the indenture between the Company and the Trustee dated as of September 1, 1990, under which the Company's Medium Term Notes, Series E, 10% Subordinated Notes Due February 1,2003, 9 3/4% Subordinated Notes Due February 13, 2001, 9 3/4% Subordinated Notes Due March 1, 2001, 9 1/2% Subordinated Notes Due April 1, 2001 and 9.20% Subordinated Notes Due May 15, 2003 were issued, and (D) any other indenture or indentures hereafter qualified under the Trust Indenture Act under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:and
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Actrank equally, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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;
(i9) the Trustee owns, on the date a default under this Indenture (but exclusive of default any period of grace or requirement of notice) has occurred upon the Notes Debt Securities of any series or on any anniversary of such default while the such default upon the Notes such Debt Securities remains outstanding, in the capacity of executor, 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 (f6), (g7) or (h) 8) of this Subsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed 25% of such voting securities or 25% of any such class of security. Promptly after the date dates of any such default Event of Default upon the Debt Securities of any series and annually in each succeeding year that the Notes remain in defaultsuch Event of Default upon such Debt Securities continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment payments in full of the principal of (or premium, if any) ), or interest on on, any of the Notes Debt Securities or coupons when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act613(b), the Trustee shall be or shall become a creditor of the Company. For purposes of paragraph (1) of this Subsection, and of Sections 512 and 513, the term "series" means a series, class or group of securities issuable under an indenture or this Indenture pursuant to whose terms holders of one such series may vote to direct the trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another such series; provided, that "series" shall not include any series of securities issuable under an indenture (including any series of Debt Securities issuable under this Indenture) if all such series rank equally and are wholly unsecured. The specification specifications of percentages in on paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes purpose of paragraph (c3) or (g7) of this Subsection.
Appears in 1 contract
Samples: Indenture (Bankamerica Corp/De/)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, interest (as defined in this Section 608, Section) with respect to the Securities of any series then, within 90 days after ascertaining that it has such conflicting interest, interest and if the default (as defined in Section 608(3)this Section) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below in this Section, resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to the Company and all NoteholdersHolders of Securities of that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Securities of any series if the Securities of 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) and
(a1) 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 are outstandingoutstanding or is trustee for more than one outstanding series of securities (as defined in this Section) under a single indenture of the Company, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, ; provided that there shall be excluded from the operation of this paragraph Section other series of Securities issued under this Indenture and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
if any such other indenture or indentures (iand all series of securities issuable thereunder) this Indenture are wholly unsecured and rank equally with the Securities of such series, and such other indenture or indentures are wholly unsecured (and such other indenture or indentures series) are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to except as otherwise set forth in Section 305(b) or Section 307(1310(b)(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indenturesAct;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee appointee, or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) 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, but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Indenture and securities issued under any other indenture under for which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon under the Notes Securities of such series (as determined in accordance with the provisions of Section 501, but exclusive of any period of grace or on requirement of notice) or any anniversary of such default while the such default upon the Notes Securities of such series 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 (f6), (g7) or (h) 8) of this 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 dates of any such default upon the Securities of such series and annually in each succeeding year that the Notes Securities of such series 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 datesdate. If the Company fails to make payment in full of the principal of of, premium (or premium, if any) ), or interest on any of the Notes Securities of any series when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j10) except under the circumstances described in paragraphs Subsections (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act613(b), the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Samples: Indenture (Abc Rail Products Corp)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining a Responsible Officer of the Trustee ascertains that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), 5% or more of the voting securities of any person who, to the actual knowledge of a Responsible Officer of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), 10% or more of a any class of security of any person who, to the actual knowledge of a Responsible Officer of the Trustee, owns 50% or more of the voting securities of the Company;; or
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Companysubsection. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsectionsubsection.
Appears in 1 contract
Samples: Indenture (Commercial Credit Co)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenit shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersBondholders, as their names and addresses appear in the Note Bond Register, notice of such failure.
(3c) For the purposes purpose of this Section, the Trustee shall be deemed to have a conflicting interest if:
(a1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, securities of the Company Issuer are outstanding, unless (A) such other indenture securities are collateral trust indenture notes under which the only collateral consists of Bonds issued under this Standard Provisions Indenture, (B) such other indenture is a collateral trust indenture under which the only collateral consists of Notes issued under indenture securities, or (C) the Issuer has no substantial unmortgaged assets and is engaged primarily in the business of owning, or of owning and developing and/or operating, real estate and this Indenture, Standard Provisions Indenture and such other indenture are secured by wholly separate and distinct parcels of real estate; provided that there shall be excluded from the operation of this paragraph any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company Issuer are outstanding, if:
(i) this the Standard Provisions Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture ActTIA, unless the Commission shall have found and declared by an order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act TIA that differences exist between the provisions of this Standard Provisions Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Standard Provisions Indenture and such other indenture or indentures, or
(ii) the Company Issuer shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Standard Provisions Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Bonds or an underwriter for the CompanyIssuer;
(c3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Issuer or an underwriter for the CompanyIssuer;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the CompanyIssuer, or of an underwriter (other than the Trustee itself) , for the Company Issuer who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Issuer but may not be at the same time an executive officer of both the Trustee may be designated by and the Company or by any underwriter for Issuer; (ii) if and so long as the Company to act in the capacity number 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 (a) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e) 10% or more of the voting securities directors of the Trustee in office is beneficially owned either by the Company or by any more than nine, one additional individual may be a director or and/or an executive officer thereofor both, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons;
(f) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more and a director of the voting securities, or 10% or more of any other class of security of the Company not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the Notes or on any anniversary of such default while the default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f), (g) or (h) of this 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 any such default and annually each succeeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f), (g) and (h) of this SubsectionIssuer; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.and
Appears in 1 contract
Samples: Indenture (CRSM Securities Inc)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 60810.8, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined for purposes of this Section 10.8, a default means a default in Section 608(3)payment of principal which shall have continued for thirty days or more and shall not have been cured) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-90 day period, the Trustee it shall either eliminate such conflicting interest or resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this Indenture.X;
(2b) In the event that If the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection 10.8, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersBondholders, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this SectionSection 10.8, the Trustee shall be deemed to have a conflicting interest ifif the Bonds are in default and:
(ai) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of any obligor on the Company Bonds are outstandingoutstanding unless (A) the Bonds are collateral trust notes under which the only collateral consists of securities issued under such other indenture, unless (B) such other indenture is a collateral trust indenture under which the only collateral consists of Notes Bonds issued under this IndentureIndenture or (C) such obligor has no substantial unmortgaged assets and is engaged primarily in the business of owning, provided or of owning and developing and/or operating, real estate, and this Indenture and such other indenture are secured by wholly separate and distinct parcels of real estate; PROVIDED, that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such series under this Indenture and such other indenture or indentures, orIndenture;
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b) the Trustee or any of its directors or executive officers is an underwriter for an obligor on the CompanyBonds;
(ciii) the Trustee directly or indirectly controls or controls, is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for an obligor on the CompanyBonds;
(div) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of any obligor on the Company, Bonds or of an underwriter (other than the Trustee itself) for the Company such obligor who is currently engaged in the business of underwriting, except that (A) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of an obligor on the Bonds but may not be at the same time an executive officer of both the Trustee and such obligor; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be director or an executive officer, or both, of the Trustee and a director of an obligor on the Bonds; and (C) the Trustee may be designated by an obligor on the Company Bonds or by any underwriter for the Company such obligor to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, or in any other similar capacity orcapacity, or subject to the provisions of paragraph (ai) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(ev) 10% or more of the voting securities of the Trustee is beneficially owned either by any obligor on the Company Bonds or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for any obligor on the Company Bonds or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, owned collectively by any two or more such persons;
(fvi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, (iA) 5% or more of the voting securities, or 10% or more of any other class of security security, of any obligor on the Company Bonds not including the Notes Bonds issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (iiB) 10% or more of any class of security of an underwriter for any obligor on the CompanyBonds;
(gvii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, any obligor on the CompanyBonds;
(hviii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a any class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of any obligor on the CompanyBonds;
(iix) the Trustee owns, on the date of default upon the Notes Bonds or on any anniversary of such default while the such default upon the Notes Bonds 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 paragraphs (fvi), (gvii) or (hviii) of this Subsectionsubsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included themsuch securities, the provisions of the immediately preceding sentence shall not apply, apply for a period of not more than two years from the date of such acquisition, 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 dates of any such default upon the Bonds and annually in each succeeding year that the Notes Bonds 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 dates. If any obligor on the Company Bonds fails to make payment in full of the principal of (of, or the premium, if any) , or interest on on, any of the Notes Bonds when and as the same 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, 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 (fvi), (gvii) and (hviii) of this Subsectionsubsection; or
(jx) except under the circumstances described in paragraphs Section 10.13(b) (1i), (3iii), (4iv), (5v) or (6) of Section 311(b) of the Trust Indenture Actvi), the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsectionobligor.
Appears in 1 contract
Samples: Trust Indenture (Aes Red Oak LLC)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 6089.14, then, within 90 days after ascertaining that it ------------ has such conflicting interest, and if the default (as defined for purposes of this Section ------- 9.14, a default shall mean a default in Section 608(3)payment of principal which shall have ---- continued for 30 days or more and shall not have been cured) 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 it shall either eliminate such conflicting interest or resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this Indenture.IX. ----------
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection 9.14, the Trustee shall, within ten (10) 10 ------------ days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this SectionSection 9.14, the Trustee shall be ------------ deemed to have a conflicting interest ifif the Bonds are in default and:
(ai) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of any obligor on the Company Bonds are outstandingoutstanding unless (A) the Bonds are collateral trust notes under which the only collateral consists of securities issued under such other indenture, unless (B) such other indenture is a collateral trust indenture under which the only collateral consists of Notes Bonds issued under this IndentureIndenture or (C) such obligor has no substantial unmortgaged assets and is engaged primarily in the business of owning, or of owning and developing and/or operating, real estate, and this Indenture and such other indenture are secured by wholly separate and distinct parcels of real estate, provided that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such series under this Indenture and such other indenture or indentures, orIndenture;
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b) the Trustee or any of its directors or executive officers is an underwriter for an obligor on the CompanyBonds;
(c) 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;
(diii) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of any obligor on the CompanyBonds, or of an underwriter (other than the Trustee itself) for the Company such obligor who is currently engaged in the business of underwriting, except that (A) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of an obligor on the Bonds but may not be at the same time an executive officer of both the Trustee and such obligor, (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 or an executive officer, or both, of the Trustee and a director of an obligor on the Bonds, and (C) the Trustee may be designated by an obligor on the Company Bonds or by any underwriter for the Company such obligor to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity orcapacity, or subject to the provisions of paragraph (ai) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(eiv) 10% or more of the voting securities of the Trustee is are beneficially owned either by any obligor on the Company Bonds or by any director 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 personsPersons; or 10% or more of the voting securities of the Trustee is are beneficially owned either by an underwriter for any obligor on the Company Bonds or by any director, partner or executive officer of any such underwriterthereof, or is are beneficially owned, collectively, owned collectively by any two or more of such personsPersons;
(fv) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, (iA) 5% or more of the voting securities, or 10% or more of any other class of security security, of any obligor on the Company Bonds not including the Notes Bonds issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (iiB) 10% or more of any class of security of an underwriter for any obligor on the Company;Bonds; 119
(gvi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, any obligor on the CompanyBonds;
(hvii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a any class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of any obligor on the CompanyBonds;
(iviii) the Trustee owns, on the date of default upon the Notes Bonds or on any anniversary of such default while the such default upon the Notes Bonds 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 paragraphs (fv), (gvi) or (hvii) of this Subsectionsubsection. 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 immediately preceding sentence shall not apply, apply for a period of not more than two years from the date of such acquisition, 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 dates of any such default upon the Bonds and annually in each succeeding year that the Notes Bonds remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-above- mentioned capacities as of such dates. If any obligor on the Company Bonds fails to make payment in full of the principal of (or of, premium, if any) , or interest on any of the Notes Bonds when and as the same 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 and, after such date, notwithstanding the foregoing provisions of this 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 (fv), (gvi) and (hvii) of this Subsectionsubsection; or
(jix) except under the circumstances described in paragraphs (1), (3), (4), (5) Section 9.3 or (6) of ----------- Section 311(b) of the Trust Indenture Act9.5, the Trustee shall be or shall become a creditor of the Companyobligor. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.-----------
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of, that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any series other than that series or other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(iA) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures (or any series of securities issuable thereunder) which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or
(iiB) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(c3) the Trustee directly or indirectly controls or controls, is directly or indirectly controlled by by, or is under direct or indirect common control with the Company or an underwriter for the Company;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), ) 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes Securities of such series or on any anniversary of such default while the such default upon the Notes remains outstandingshall be continuing, 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 (f6), (g7) or (h) 8) of this 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 any such default upon the Securities of such series and annually in each succeeding year that the Notes Securities of such series 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 datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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-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, 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 -41- such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (f6), (g7) and (h) 8) of this Subsection; or.
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or and (6) of Section 311(b) of the Trust Indenture Act6.13(b), the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 1 contract
Samples: Indenture (Tribune Co)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenit shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersDebentureholders, as their names and addresses appear in the Note Debenture Register, notice of such failure.
(3c) For the purposes purpose of this Section, the Trustee shall be deemed to have a conflicting interest if:
(a1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securitiesSecurities, of the Company are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debentures issued under this Indenture, provided that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation Participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture ActTIA, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act TIA that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) or the Company company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Debentures or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial beneficial- owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or (5r more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debentures issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)) , 10% or more of a any class of security of any person who, to the knowledge of the Trustee, Trustee owns 50% or more of the voting securities of the Company;; or
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 paragraphs (f)6) , (g7) or (h) 8) of this Subsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed 25% of such voting securities or 25% of any such class of security. Promptly after the date of any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check check. of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company fails to make payment in full of the principal of (of, or the premium, if any) , or interest on on, any of the Notes Debentures when and as the same becomes due and payable, and such failure continues continue's for 30 days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of bf 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i), 9) inclusive, of this Subsection Subsection, shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection. For the purposes of paragraphs (6) (7) (8) and (9) of this Subsection only, (i) the terms "security' and n securities" shall include only such securities as are generally known as corporate securities, but shall not include any note or other evidence of indebtedness issued to evidence an obligation to repay moneys lent to a person by one or more banks, trust companies or banking firms, or any certificate of interest or participation in any such note or evidence of indebtedness; (ii) an obligation shall be deemed to be 'in default' when a default in payment of principal shall have continued for 30 days or more and shall not have been cured; and (iii) the Trustee shall not be deemed to be the owner or holder of (A) any security which it holds as collateral security, as trustee or otherwise, for an obligation which is not in default as defined in clause (ii) above, or (B) any security which it holds as collateral security under this Indenture, irrespective of any default hereunder, or (C) any security which it holds as agent for collection, or as custodian, escrow agent, or depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter when used with reference to the Company means every person who, within three (3) years prior to the time as of which the determination is made, has purchased from the Company with a view to, or has offered or sold for the Company in connection with, the distribution of any security of the Company outstanding at such time, or has participated or has had a direct or indirect participation in any such undertaking, or has participated or has had a participation in the direct or indirect underwriting of any such undertaking, but such term shall not include a person whose interest was limited to a commission from an underwriter or dealer not in excess of the usual and customary distributors' or sellers' commission.
Appears in 1 contract
Samples: Trust Indenture Agreement (SFG Mortgage & Investment Co Inc)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-90 day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph (w) this Indenture with respect to the Securities of any series other than that series, and in addition, any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company Company, not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest interest, if any, on any of the Notes Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 1 contract
Samples: Indenture (Ingersoll Rand Co)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608(certain terms being defined and percentages calculated as hereinafter stated in this Section), then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before within the end of ninety (90) day period immediately following the date on which the Trustee ascertains that it has such conflicting interest, it shall, within such ninety (90-) day period, the Trustee shall either eliminate such conflicting interest or resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1) subsection A of this SectionSection the Trustee shall, within ten (10) days after the expiration of such ninety (90-) day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, notice of such failurefailure to the Holders in the manner and to the extent provided in Section 8.03(C).
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:if there is an Event of Default and
(ai) 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 are outstanding, or is trustee for more than one outstanding series of securities, as hereafter defined, under a single indenture of the Company, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Obligations issued under this Indenture, provided PROVIDED that there shall be excluded from the operation of this paragraph other series under this Indenture and any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) if the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures or under more than one outstanding series under a single 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 one of such indentures;indentures or with respect to such series; or
(bii) the Trustee or any of its directors or executive officers is an underwriter for the Company;; or
(ciii) 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
(div) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (a) one individual may be a director or an executive officer or both of the Trustee and a director or an executive officer or both of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (b) if and so long as the number of directors of the Trustee in office is more than nine (9), one (1) additional individual may be a director or an executive officer or both of the Trustee and a director of the Company; and (c) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;; or
(ev) ten percent (10% %) or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director director, partner, or executive officer thereof, or twenty percent (20% %) or more of such voting securities is beneficially owned, collectively, by any two (2) or more of such persons; or ten percent (10% %) or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two (2) or more such persons;; or
(fvi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (ia) five percent (5% %) or more of the voting securities, or ten percent (10% %) or more of any other class of security security, of the Company not including the Notes Obligations issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (iib) ten percent (10% %) or more of any class of security of an underwriter for the Company;; or
(gvii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), five percent (5% %) or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent (10% %) or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;; or
(hviii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), ten percent (10% %) or more of a any class of security of any person who, to the knowledge of the Trustee, owns fifty percent (50% %) or more of the voting securities of the Company;; or
(iix) the Trustee owns, on the date of default upon the Notes occurrence of an Event of Default (or on any occurrence that would constitute an Event of Default upon the lapse of time or giving of notice) or any anniversary of such default date while the default upon the Notes such Event of Default or occurrence remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent (25% %) or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (f6), (g7) or (h) 8) of this Subsectionsubsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two (2) years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five percent (25% %) of such voting securities or twenty-five percent (25% %) of any such class of security. Promptly after any Event of Default (or other occurrence that would constitute an Event of Default upon the date lapse of any such default time or giving of notice) and annually in each succeeding year that the Notes remain in defaultany Event of Default or other occurrence remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (of, or the premium, if any) , or interest on on, any of the Notes Obligations when and as the same becomes due and payable, and such failure continues for 30 thirty (30) days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such thirty (30-) day period, and after such date, notwithstanding the foregoing provisions of this 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(jx) except under the circumstances described in paragraphs (1subsection 7.13(B), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Samples: Supplemental Indenture (Old Dominion Electric Cooperative)
Disqualification; Conflicting Interests. (1) A. If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608(certain terms being defined and percentages calculated as hereinafter stated in this Section), then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before within the end of ninety (90) day period immediately following the date on which the Trustee ascertains that it has such conflicting interest, it shall, within such ninety (90-) day period, the Trustee shall either eliminate such conflicting interest or resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2) B. In the event that the Trustee shall fail to comply with the provisions of Subsection (1) of this Sectionparagraph A above the Trustee shall, within ten (10) days after the expiration of such ninety (90-) day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, notice of such failure.failure to the Holders in the manner and to the extent provided in Section 10.3C.
(3) C. For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:if there is an Event of Default and
(a1) 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 are outstanding, or is trustee for more than one outstanding series of securities, as hereafter defined, under a single indenture of the Company, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Obligations issued under or secured by this Indenture, provided PROVIDED that there shall be excluded from the operation of this paragraph clause other series under this Indenture and any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) if the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures or under more than one outstanding series under a single 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 one of such indentures;indentures or with respect to such series; or
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;; or
(c3) 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
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) if and so 100 long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph clause (a1) of this Subsectionabove, to act as trustee, whether under an indenture or otherwise;; or
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;; or
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection paragraph defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes obligations issued under or secured by this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;; or
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection paragraph defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;; or
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection paragraph defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes occurrence of an Event of Default (or on any occurrence that would constitute an Event of Default upon the lapse of time or giving of notice) or any anniversary of such default date while the default upon the Notes such Event of Default or occurrence 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 clauses (f6), (g7) or (h) of this Subsection8) above. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two (2) 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 any Event of Default (or other occurrence that would constitute an Event of Default upon the date lapse of any such default time or giving of notice) and annually in each succeeding 101 year that the Notes remain in defaultany Event of Default or other occurrence remains outstanding, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (of, or the premium, if any) , or interest on on, any of the Notes Obligations when and as the same becomes due and payable, and such failure continues for 30 thirty (30) days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such thirty (30-) day period, and after such date, notwithstanding the foregoing provisions of this paragraphclause, 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 clauses (f6), (g7) and (h) of this Subsection8) above; or
(j10) except under the circumstances described in paragraphs clauses (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act9.13B, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Samples: Indenture (Oglethorpe Power Corp)
Disqualification; Conflicting Interests. (1) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608, then, within 90 ninety (90) days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such ninety (90-) day period, the Trustee shall either eliminate such conflicting interest or resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2) In the event that the Trustee shall fail to comply with the provisions of Subsection (1) of this Section, within ten (10) days after the expiration of such ninety (90-) day period, the Trustee shall transmit by mail to all NoteholdersNote Holders, as their names and addresses appear in the Note Register, notice of such failure.
(3) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest ifif the Notes are in default (as defined herein, but exclusive of any period of grace or requirement of notice) and:
(a) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes issued under this Indenture, provided that there shall be excluded from the operation of this paragraph that certain indenture between the Trustee and the Company dated June 11, 1996, and any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:,
(i) this Indenture and such other indenture or indentures are wholly unsecured and rank equally and such other indenture or indentures are specifically described herein or are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b306(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect Indirect common control with an underwriter for the Company;
(d) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity or, subject to the provisions of paragraph (a) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e) ten percent (10% %) or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director or executive officer thereof, or twenty percent (20% %) or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or ten percent (10% %) or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons;
(f) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) five percent (5% %) or more of the voting securities, or ten percent (10% %) or more of any other class of security of the Company not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) ten percent (10% %) or more of any class of to security of an underwriter for the Company;
(g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), five percent (5% %) or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent (10% %) or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, with the Company;
(h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), ten percent (10% %) or more of a class of security of any person who, to the knowledge of the Trustee, owns fifty percent (50% %) or more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the Notes or on any anniversary of such default while the default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent (25% %) 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 (f), (g) or (h) of this 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 twenty-five percent (25% %) of such voting securities or twenty-five percent (25% %) of any such class of security. Promptly after the date of any such default and annually each succeeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same becomes due and payable, and such failure continues for 30 thirty (30) days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such thirty (30-) day period, and after such date, notwithstanding the foregoing provisions of this 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 (f), (g) and (h) of this Subsectionsubsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), ) inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608, thenSection, within 90 days after ascertaining that it has such conflicting interest, and if the default Default (as defined in Section 608(3)exclusive of any period of grace or requirement of notice) to which such conflicting interest relates has not been cured or cured, duly waived or otherwise eliminated before the end of such 90-day period, the Trustee it shall either eliminate such conflicting interest or resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersBondholders, as their names and addresses appear in the Note Bond Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest ifif a Default (exclusive of any period of grace or requirement of notice) has occurred and is continuing) and:
(a1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of any obligor on the Company Bonds are outstanding, or is trustee for more than one outstanding series under a single indenture of an obligor on the Bonds, unless (A) the Bonds are collateral trust bonds under which the only collateral consists of securities issued under such other indenture, or (B) such other indenture is a collateral trust indenture under which the only collateral consists of Notes Bonds issued under this Indenture, provided that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company such obligor are outstanding, if:
if (i) as to such obligor, this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture ActTIA, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1subsection (b) of section 305 or subsection (c) of section 307 of the Trust Indenture Act TIA that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures (or such series) which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and one of such other indenture or indentures, or
or (ii) the Company such obligor shall have sustained the burden of proving, on application to the Commission and after the opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures or under more than one outstanding series under a single 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 one of such indenturesindentures or with respect to such series;
(b2) the Trustee or any of its directors or executive officers is an underwriter for any obligor on the CompanyBonds;
(c3) 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 any obligor on the CompanyBonds;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of any obligor on the CompanyBonds, or of an underwriter (other than the Trustee itself) for the Company such obligor who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of an obligor on the Bonds but may not be at the same time an executive officer of both the Trustee and such obligor; (ii) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be director or an executive officer, or both, of the Trustee and a director of an obligor on the Bonds; and (iii) the Trustee may be designated by an obligor on the Company Bonds or by any underwriter for the Company such obligor to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by any obligor on the Company Bonds or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for any obligor on the Company Bonds or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of any obligor on the Company Bonds not including the Notes Bonds issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for any obligor on the CompanyBonds;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, any obligor on the CompanyBonds;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a any class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of any obligor on the CompanyBonds;
(i9) the Trustee owns, on the date of default upon the Notes a Default (exclusive of any period of grace or on requirement of notice) or any anniversary of such default Default while the default upon the Notes such Default remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 paragraphs (f6), (g7) or (h) 8) of this Subsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed 25% of such voting securities or 25% of any such class of security. Promptly after the date dates of any such default Default upon the Bonds and annually in each succeeding year that the Notes Bonds remain in default, in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesdate. If any obligor upon the Company Bonds fails to make payment in full of the principal of (of, or the premium, if any) , or interest on on, any of the Notes Bonds when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j10) except under the circumstances described in paragraphs paragraph (1), (3), (4), (5) or (6) of Section section 311(b) of the Trust Indenture ActTIA, the Trustee shall be or shall become a creditor of any obligor on the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this SubsectionBonds.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenit shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this Section, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit or cause to be transmitted by mail to all NoteholdersHolders, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest interest, with respect to the Securities of any series, if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided PROVIDED that there shall be excluded from the operation of this paragraph [the indenture dated as of [_______ __], [19__], between the Company and Trustee pursuant to which the Company issued its __________] and this Indenture with respect to the Securities of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly if or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If lf the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 1 contract
Samples: Indenture (Boise Cascade Trust Iii)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series if:
(a1) 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 the Guarantor are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided that there shall be excluded from the operation of this -------- paragraph this Indenture with respect to the Securities of any series other than that series or any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company or the Guarantor are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the CompanyCompany or the Guarantor;
(c3) 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 the Guarantor or an underwriter for the CompanyCompany or the Guarantor;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the CompanyCompany or the Guarantor, or of an underwriter (other than the Trustee itself) for the Company or the Guarantor who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company or the Guarantor; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company or the Guarantor; and (iii) the Trustee may be designated by the Company or the Guarantor or by any underwriter for the Company or the Guarantor to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, ; or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or the Guarantor or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or the Guarantor or by any director, partner director or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company or the Guarantor not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the CompanyCompany or the Guarantor;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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;Company or the Guarantor; or
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company or the Guarantor fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 1 contract
Samples: Indenture (Hilfiger Tommy Usa Inc)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenit shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureNine.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this Section, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders, as their names and addresses appear in the Note Debenture Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:
(a1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other 50 securities, of the Company Bank are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debentures issued under this Indenture, provided that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Debentures or an underwriter for the CompanyBank;
(c3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Bank or an underwriter for the CompanyBank;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the CompanyBank, or of an underwriter (other than the Trustee itself) for the Company Bank who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Bank but may not be at the same time an executive officer of both the Trustee and the Bank; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Bank; and (iii) the Trustee may be designated by the Company Bank or by any underwriter for the Company Bank to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company Bank or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company Bank or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company Bank not including the Notes Debentures issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the CompanyBank;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the CompanyBank;
(h) 8) the Trustee is the beneficial owner of, or holds hold as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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;Bank; or
(i9) the Trustee owns, on the date of default upon the Notes or on January 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this 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 any such default and annually January 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesdate. If the Company Bank fails to make payment in full of the principal of (or of, premium, if any) , or interest on any of the Notes Debentures when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs paragraph (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, then within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)Subsection (b) of this Section) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-90- day period, the Trustee it shall either eliminate such conflicting interest or or, except as otherwise provided in this Section 609, resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article Article, and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle Six.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of that series, as their names and addresses appear in the Note Security Register, notice of such failurefailure in the manner and to the extent provided in Subsection (a) of Section 703 hereof.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest ifwith respect to the Securities of any series if such Securities are in default (as defined in Subsection (b) of this Section, but exclusive of any period of grace or requirement of notice) and:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of Securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that that: (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any an underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositarydepository, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Indenture and securities issued under any an other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes Securities of any series issued under this Indenture (as such term is defined hereinafter in this Section but exclusive of any period of grace or on requirement of notice) or any anniversary of such default while the such default upon the Notes Securities of a series issued under this Indenture remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this Subsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included includes them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed 25% of such voting securities or 25% of any such class of security. Promptly after the date dates of any such default upon the Securities of any series issued under this Indenture and annually in each succeeding year that the Notes such Securities 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 dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Securities when and as the same becomes due d u e 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(bSubsection (b) of the Trust Indenture ActSection 614 of this Indenture, the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 1 contract
Samples: Supplemental Indenture (Coca Cola Bottling Co Consolidated /De/)
Disqualification; Conflicting Interests. (1) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2) In the event that the Trustee shall fail to comply with the provisions of Subsection (1) of this Section, within ten (10) days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersDebentureholders, as their names and addresses appear in the Note Debenture Register, notice of such failure.
(3) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:
(a) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debentures issued under this Indenture, provided that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b306(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c) 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;
(d) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity or, subject to the provisions of paragraph (a) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons;
(f) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in 44 this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security of the Company not including the Notes Debentures issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 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;
(h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the Notes Debentures or on any anniversary of such default while the default upon the Notes Debentures 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 (f), (g) or (h) of this 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 any such default and annually each succeeding year that the Notes Debentures 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 dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debentures when and as the same 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, 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 (f), (g) and (h) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenwith respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-90 day period, the Trustee shall transmit by mail to all NoteholdersHolders of Securities of that series, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any series other than that series, and in addition, any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company Company, not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest interest, if any, on any of the Notes Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsection.
Appears in 1 contract
Samples: Indenture (Ingersoll Rand Co)
Disqualification; Conflicting Interests. (1a) If the Trustee has shall have or shall acquire any conflicting interest, interest (as defined in this Section 608310(b) of the Trust Indenture Act), thenand a Default has occurred and is continuing with respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign with respect to the Securities of such series in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, transmit, in the Trustee shall transmit by mail manner and to the extent provided in Section 1503(c), to all Noteholders, as their names and addresses appear in the Note Register, Holders of Securities of such series notice of such failure.
(3c) For Except in the purposes case of this Sectiona Default in the payment of the principal of or interest on any Security, or in the payment of any sinking fund or purchase fund installment, the Trustee shall not be deemed required to have a conflicting interest if:
(a) resign as provided by this Section if 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes issued under this Indenture, provided that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship (1) the Default to which the conflicting interest relates may be cured or waived during a reasonable period and under this Indenture the procedures described in such application and such other indenture or indentures is (2) a stay of the Trustee's duty to resign will not so likely to involve a material conflict be inconsistent with the interests 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 one Holders. The filing of such indentures;
(b) an application shall automatically stay the Trustee or any performance of its directors or executive officers is an underwriter for the Company;
(c) duty to resign until 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;Commission orders otherwise.
(d) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity or, subject to the provisions of paragraph (a) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e) 10% or more of the voting securities Any resignation of the Trustee is beneficially owned either by pursuant to this Section shall become effective only upon the Company or by any director or executive officer thereofappointment of a successor Trustee, or 20% or more and such successor Trustee's acceptance of such voting securities is beneficially owned, collectively, by any two or more of such persons; or 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons;
(f) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security of the Company not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the Notes or on any anniversary of such default while the default upon the Notes remains outstandingappointment, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or manner hereinafter specified 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 (f), (g) or (h) of this 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 any such default and annually each succeeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f), (g) and (h) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this SubsectionArticle.
Appears in 1 contract
Samples: Indenture (360 Communications Co)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608SECTION 6.08, thenit shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureVI.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSECTION 6.08, the Trustee shall, within ten (10) days after the expiration of such 90-day period, the Trustee shall transmit by mail notice of such failure to all Noteholders, the Debentureholders as their names and addresses appear in the Note Debenture Register, notice of such failure.
(3c) For the purposes of this SectionSECTION 6.08, the Trustee shall be deemed to have a conflicting interest if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debentures issued under this Indenture, provided that there shall be excluded from the operation of this paragraph (1) (A) the Indenture dated as of February 15, 1981 between the Company and First National Bank in Dallas, as Trustee, for which MBank Dallas, National Association, is the successor trustee, pursuant to which the Company's 11% Convertible Subordinated Debentures due February 15, 2006 were issued and (B) any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture ActTIA, unless the Commission shall have found and declared by order pursuant to Section SECTION 305(b) or Section 307(1SECTION 307(c) of the Trust Indenture Act TIA that differences exist between the provisions of this Indenture and of the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one or more of such other indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Debentures or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsectionsubsection (c), to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection (c) defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debentures issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection (c) defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection (c) defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g) 7), or (h) 8) of this Subsectionsubsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed 25% of such voting securities or 25% of any such class of security. Promptly after the date of any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such datesMay 15. If the Company fails to make payment in full of the principal of (or the premium, if any) ), or interest on on, any of the Notes Debentures when and as the same 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-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 paragraphparagraph (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 (f6), (g7) and (h) 8) of this Subsection; or
subsection (j) except under the circumstances described in paragraphs (1c), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection subsection (c) shall not be construed as indicating that the ownership of such percentage 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 (c3) or (g7) of this Subsectionsubsection (c).
Appears in 1 contract
Samples: Indenture (Banctec Inc)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have, within two years preceding such transmission, filed their names and addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and address appear in the Note Register, notice information preserved at the time by the Trustee in accordance with Section 7.02(a) of such failurethis Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the 48 56 Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default or on any anniversary of such default Event of Default while the default upon the Notes 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 (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 not more than 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 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Samples: Indenture (Prison Realty Trust Inc)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersHolders of Debt Securities of such series notice of such failure. Notice given pursuant to this Section 6.8(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have, within two years preceding such transmission, filed their names and addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and address appear in the Note Register, notice information preserved at the time by the Trustee in accordance with Section 7.2(a) of such failurethis Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest ifwith respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and:
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to the Debt Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary necessary, in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Debt Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one this Indenture with respect to the Debt Securities of such series and such other series or under such other indenture or indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) if and so long as 56 63 the number of directors of the Trustee in office is more than nine, one additional individual may be a director or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, depositary or in any other similar capacity capacity, or, subject to the provisions of paragraph (al) of this Subsectionsubsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, thereof or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, of or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined)default, 10% or more of a 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;
(i9) the Trustee owns, on the date of default upon the Notes such Event of Default or on any anniversary of such default Event of Default while the default upon the Notes 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 (f6), (g7) or (h) 8) of this Subsectionsubsection. 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 not more than 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 57 64 dates of any such default Event of Default and annually in each succeeding year that the Notes remain in defaultsuch Event of Default continues, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debt Securities when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsectionsubsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b6.13(b) of the Trust Indenture Actthis Indenture, the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 6086.8, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(36.8 (c)) to which such conflicting interest relates related 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this Section, within ten (10) days after the expiration of such 90-day period, the Trustee shall transmit by mail to all NoteholdersDebentureholders, as their names and addresses appear in the Note Debenture Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debentures issued under this Indenture, provided that there shall be excluded from the operation of this paragraph any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b3.6(b) or Section 307(13.7(l) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity or, subject to the provisions of paragraph (a) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) Ten percent (10% %) or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security of the Company not including the Notes Debentures issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 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;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i9) the Trustee owns, on the date of default upon the Notes Debentures or on any anniversary of such default while the default upon the Notes Debentures 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 specify percentage of which would have constituted a conflicting interest under paragraph (f6), (g7) or (h) 8) of this 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 any such default and annually each succeeding year that the Notes Debentures 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 dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes Debentures when and as the same 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, 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 (f6), (g7) and (h) 8) of this Subsection; or
(j10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b3.11(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e5) to (i9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c3) or (g7) of this Subsection.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 6089.8, then, within 90 ninety (90) days after ascertaining that it has such conflicting interest, and if the default (as such term is defined in Section 608(3)the Trust Indenture Act) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such ninety (90-) day period, the Trustee it shall either eliminate such conflicting interest or resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed IX; provided, however, that except in the manner case of a default in the payment of the principal of, premium if any or interest on any Security, or in payment of any Sinking Fund redemption, the Trustee shall not be required to resign as provided by this Section 9.8 if the Trustee shall have sustained the burden of proving, on application to the SEC and after opportunity for hearing thereon, that
(i) the default under the Indenture may be cured or waived during a reasonable period and under the procedures described in this Indenturesuch application, and
(ii) a stay of the Trustee's duty to resign will not be inconsistent with the interests of the Holders of the Securities. The filing of such an application shall automatically stay the performance of the duty to resign until the SEC orders otherwise.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1) of this SectionSection 9.8(a), the Trustee shall, within ten (10) days after the expiration of such 90-day ninety (90)-day period, the Trustee shall transmit by mail to all NoteholdersHolders, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this SectionSection 9.8, the Trustee shall be deemed to have a conflicting interest ifif the Securities are in default (as such term is defined in the Trust Indenture Act) and:
(ai) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of any obligor on the Company Securities are outstandingoutstanding or is trustee for more than one (1) outstanding series of Securities, under a single indenture of any obligor, unless (A) the Securities are collateral trust notes under which the only collateral consists of securities issued under such other indenture, (B) such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this IndentureIndenture or (C) such obligor has no substantial unmortgaged assets and is engaged primarily in the business of owning, or of owning and developing or operating, real estate, and the Indenture and such other indenture are secured by wholly separate and distinct parcels of real estate, provided that there shall be excluded from the operation of this paragraph other series under this Indenture, and any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company such obligor are outstanding, if:
(i) this Indenture and if such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company obligor shall have sustained the burden of proving, on application to the Commission SEC and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures or under more than one (1) outstanding series under a single 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 one (1) of such indenturesindentures or with respect to such series;
(bii) the Trustee or any of its directors or executive officers is an underwriter for an obligor upon the CompanySecurities;
(ciii) 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 an obligor upon the CompanySecurities;
(div) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of any obligor upon the CompanySecurities, or of an underwriter (other than the Trustee itself) for the Company such obligor who is currently engaged in the business of underwriting, except that (A) one (1) individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of an obligor on the Securities but may not be at the same time an executive officer of both the Trustee and such obligor; (B) if and so long as the number of directors of the Trustee in office is more than nine, one (1) additional individual may be director or an executive officer, or both, of the Trustee and a director of an obligor on the Securities; and (C) the Trustee may be designated by an obligor on the Company Securities or by any underwriter for the Company such obligor to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent agent, or depositary, or in any other similar capacity orcapacity, or subject to the provisions of paragraph (ai) of this SubsectionSection 9.8(c), to act as trustee, whether under an indenture or otherwise;; 50
(ev) ten percent (10% %) or more of the voting securities of the Trustee is beneficially owned either by any obligor on the Company Securities or by any director director, partner, or executive officer thereof, or twenty percent (20% %) or more of such voting securities is beneficially owned, collectively, by any two (2) or more of such persons; or ten percent (10% %) or more of the voting securities of the Trustee is beneficially owned either by an underwriter for any obligor on the Company Securities or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, owned collectively by any two (2) or more such persons;
(fvi) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), (iA) five percent (5% %) or more of the voting securities, or ten percent (10% %) or more of any other class of security security, of any obligor on the Company Securities not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, trustee or (iiB) ten percent (10% %) or more of any class of security of an underwriter for any obligor on the CompanySecurities;
(gvii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection subsection defined), five percent (5% %) or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten percent (10% %) or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, any obligor on the CompanySecurities;
(hviii) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which that is in default (as hereinafter in this Subsection subsection defined), ten percent (10% %) or more of a any class of security of any person who, to the knowledge of the Trustee, owns fifty percent (50% %) or more of the voting securities of any obligor on the CompanySecurities;
(iix) the Trustee owns, on the date of default (as such term is defined in the Trust Indenture Act) upon the Notes Securities or on any anniversary of such default while the such default upon the Notes Securities remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five percent (25% %) or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph paragraphs (fvi), (gvii) or (hviii) of this SubsectionSection 9.8(c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which that included them, the provisions of the immediately preceding sentence shall not apply, for a period of not more than two (2) years from the date of such acquisition, acquisition to the extent that such securities included in such estate do not exceed twenty-five percent (25% %) of such voting securities or twenty-five percent (25% %) of any such class of security. Promptly after the date dates of any such default upon the Securities and annually in each succeeding year that the Notes Securities 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 dates. If any obligor upon the Company Securities fails to make payment in full of the principal of (or the premium, if any) , or interest on any of the Notes Securities when and as the same becomes due and payable, payable and such failure continues for 30 thirty (30) days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30-day thirty (30)-day period, and after such date, notwithstanding the foregoing provisions of this 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 (fvi), (gvii) and (hviii) of this SubsectionSection 9.8(c); or
(jx) except under the circumstances described in paragraphs Section 9.13(b) (1i), (3iii), (4iv), (5v) or (6) of Section 311(b) of the Trust Indenture Actvi), the Trustee shall be or shall become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsectionobligor.
Appears in 1 contract
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608Section, thenit shall, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)) 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 resign in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection (1a) of this Section, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit or cause to be transmitted by mail to all NoteholdersHolders, as their names and addresses appear in the Note Security Register, notice of such failure.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest interest, with respect to the Securities of any series, if:
(a1) 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Securities issued under this Indenture, provided PROVIDED that there shall be excluded from the operation of this paragraph the indenture dated as of [________ __], [1999], between the Company and Trustee pursuant to which the Company issued its [___________________________________________] and this Indenture with respect to the Securities of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company;
(c3) 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;
(d4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) 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 or an executive officer, or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity capacity, or, subject to the provisions of paragraph (a1) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriterthereof, or is beneficially owned, collectively, by any two or more such persons;
(f6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security security, of the Company not including the Notes Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly if or indirectly or is under direct or indirect common control with, the Company;
(h) 8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a 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
(i9) the Trustee owns, on the date of default upon the Notes or on May 15 in any anniversary of such default while the default upon the Notes remains outstandingcalendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f6), (g7) or (h) 8) of this 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 any such default and annually May 15 in each succeeding year that the Notes remain in defaultcalendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f), (g) and (h) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.the
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Samples: Indenture (Boise Cascade Trust Iii)
Disqualification; Conflicting Interests. (1a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 608with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it has such conflicting interest, and if the default (as defined in Section 608(3)hereinafter defined) to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, the Trustee shall either eliminate such conflicting interest or or, except as otherwise provided below, resign with respect to the Debt Securities of such series, and the Company shall take prompt steps to have a successor appointed, in the manner and with the effect hereinafter specified in this Article and the Company shall take prompt steps to have a successor appointed in the manner provided in this IndentureArticle.
(2b) In the event that the Trustee shall fail to comply with the provisions of Subsection subsection (1a) of this SectionSection with respect to the Debt Securities of any series, the Trustee shall, within ten (10) 10 days after the expiration of such 90-day period, the Trustee shall transmit by mail to all Noteholders, as their names and addresses appear in the Note Register, Holders of Debt Securities of such series notice of such failure. 42 Subordinated Indenture Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the Registered Holders appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a) of this Indenture.
(3c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest if:with respect to the Debt Securities of any series, if there shall exist an Event of Default (as such term is defined herein, but exclusive of any period of grace or requirement of notice) with respect to such Debt Securities and
(a1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt 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 are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Notes Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Debt Securities of any series other than that series and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(1) of the Trust Indenture Act that differences exist between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(b) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(c) 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;
(d) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity or, subject to the provisions of paragraph (a) of this Subsection, to act as trustee, whether under an indenture or otherwise;
(e) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director 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 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer of any such underwriter, or is beneficially owned, collectively, by any two or more such persons;
(f) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security of the Company not including the Notes issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company;
(g) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(h) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of a class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;
(i) the Trustee owns, on the date of default upon the Notes or on any anniversary of such default while the default upon the Notes remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 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 (f), (g) or (h) of this 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 any such default and annually each succeeding year that the Notes remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Notes when and as the same 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, 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 (f), (g) and (h) of this Subsection; or
(j) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 311(b) of the Trust Indenture Act, the Trustee shall be or become a creditor of the Company. The specification of percentages in paragraphs (e) to (i), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentage of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (c) or (g) of this Subsection.
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