Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked: (1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing; (2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established; (3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and (4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that: (a) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture; (b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and (c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Indenture (Exelon Generation Co LLC), Indenture (Exelon Generation Co LLC)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto (including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (22.04(a)(ii), (32.04(a)(iii) and (42.04(a)(iv) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1i) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series (including Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2ii) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.03 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3iii) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 2.01 and 2.3 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4iv) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(aA) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bB) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(cC) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(D) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its consolidated subsidiaries that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any U.S. governmental body, agency or court having jurisdiction over the Issuer or any of its consolidated subsidiaries, and no consent, approval or authorization of any U.S. governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Senior Indenture (Morgan Stanley Dean Witter & Co), Indenture (Abn Amro Bank Nv)
Authentication and Delivery of Securities. 3.1 The Issuer may deliver Securities undertakes that the Permanent Global Security (duly executed on behalf of any series executed by the Issuer Issuer) will be available to be exchanged for interests in the Trustee for authentication together Temporary Global Security in accordance with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall Temporary Global Security.
3.2 If a Global Security is to be determined by or pursuant to such Issuer Order and procedures. If provided exchanged in accordance with its terms for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such definitive Securities, the Trustee shall be entitled Issuer undertakes that it will deliver to, or to receive (the order of, the Principal Paying Agent, as soon as reasonably practicable and in the case of subparagraphs (2), (3) and (4) below only at or any event not later than 15 days before the time of the first request of the Issuer relevant exchange is due to the Trustee to authenticate take place, definitive Securities of such series(with Coupons and a Talon for further Coupons attached) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding of €1,000,000,000 or such lesser amount as is the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series represented by the Global Security to be issued in exchange for the Global Security. Each definitive Security so delivered shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option executed on behalf of the Issuer, either one or more Opinions of Counsel, or a letter addressed .
3.3 The Issuer authorises and instructs the Principal Paying Agent to authenticate the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Global Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the any definitive Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established delivered pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee sub-Clause 3.2 in accordance with the provisions of this Indenture the Trust Deed.
3.4 The Issuer authorises and delivered instructs the Principal Paying Agent to cause interests in the Temporary Global Security to be exchanged for interests in the Permanent Global Security and duly paid interests in a Global Security to be exchanged for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable definitive Securities in accordance with their respective terms except as terms. Following the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) exchange of the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered last interest in a proceeding in equity or at law). In rendering Global Security, the Principal Paying Agent shall cause such opinions, such counsel may rely upon opinions of other counsel (copies of which shall Global Security to be cancelled and delivered to the Trustee) reasonably satisfactory Issuer or as it may direct.
3.5 The Principal Paying Agent shall cause all Securities delivered to and held by it under this Agreement to be maintained in safe keeping and shall ensure that interests in the Trustee, Temporary Global Security are only exchanged for interests in which case the opinion shall state that counsel believes that counsel and Permanent Global Security in accordance with the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers terms of the Issuer Temporary Global Security and its Subsidiaries this Agreement and certificates that the definitive Securities are issued only in accordance with the terms of public officials. The Trustee shall have a Global Security, the right to decline to authenticate Trust Deed and deliver this Agreement.
3.6 So long as any of the Securities under this Section 2.4 if is outstanding the TrusteePrincipal Paying Agent shall, being advised by counsel, determines that such action may not lawfully be taken within seven days of any request by the Issuer or if the Trustee, certify to the Issuer or the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities number of definitive Securities held by it under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryAgreement.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 2 contracts
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2)receive, (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, ;
(b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to timeany Board Resolution, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate and/or executed supplemental indenture referred to in Section 2.1 2.01 and 2.3 Section 2.03 by or pursuant to which the forms and terms of the Securities were established;
(3c) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 Section 2.01 and 2.3 Section 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At the option an Opinion of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially Counsel to the effect that:
(ae) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the such Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance Section 2.01 and Section 2.03 and comply with this Indenture and, when Indenture,
(f) the authentication and delivery of such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized Securities by the Issuer and will have been established in conformity with Trustee are authorized under the provisions of this Indenture; and,
(cg) such Securities when executed authenticated and delivered by the Trustee and issued by the Issuer in the manner and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be constitute valid and binding obligations of the Issuer, enforceable and
(h) all laws and requirements in accordance with their respective terms except respect of the execution and delivery by the Issuer of the Securities have been complied with, and covering such other matters as the enforceability thereof Trustee may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officialsrequest. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the The Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such the Securities of a series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” Each Depository Depositary designated pursuant to this Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Indenture (LSB Industries Inc), Indenture (LSB Industries Inc)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter letters addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the articles of incorporation or regulations of the Issuer or any agreement or other instrument binding upon the Issuer or any of its Subsidiaries that is material to the Issuer and its Subsidiaries, considered as one enterprise, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any Subsidiary, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the State of Ohio and the Federal law of the United States, upon the opinions of other counsel (copies of which shall be delivered to furnished to, and which counsel shall be reasonably satisfactory to, the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Indenture (Lubrizol Corp), Indenture (Lubrizol Corp)
Authentication and Delivery of Securities. (1) The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, PROVIDED that, with respect to Securities of a series subject to a Periodic Offering, (ai) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bii) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (ciii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (div) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2b) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3c) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(ai) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(ciii) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as (i) the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer insolvency or similar laws affecting creditors’ ' rights generally and (ii) rights of acceleration, if any, and the availability of equitable remedies may be limited by equitable principles of general applicability applicability. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he or she and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he or she has relied, to the extent he or she deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. .
(2) The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. .
(3) If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one whole or more Registered Global Securitiesin part in global form, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities in global form that (ia) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (iib) if such Securities are Registered Securities, shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities in global form or the nominee of such DepositoryDepositary, (iiic) if such Securities are Registered Securities, shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (ivd) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” "
(4) Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Senior Indenture (Nationwide Financial Services Inc/), Senior Indenture (Nationwide Financial Services Inc/)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities and Coupons, if any, to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities and Coupons, if any, when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer insolvency or similar laws affecting creditors’ ' rights generally generally, (ii) rights of acceleration, if any, and (iiiii) the availability of equitable remedies may be limited by equitable principles of general applicability and such counsel need express no opinion with regard to the enforceability of Section 6.6 or of a judgment denominated in a currency other than Dollars. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Indenture (McKesson Financing Trust Iv), Indenture (McKesson Corp)
Authentication and Delivery of Securities. (1) The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (ai) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bii) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (ciii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (div) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2b) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3c) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(ai) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(ciii) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as (A) the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer insolvency or similar laws affecting creditors’ ' rights generally and (iiB) rights of acceleration, if any, and the availability of equitable remedies may be limited by equitable principles of general applicability applicability. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he or she and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he or she has relied, to the extent he or she deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. .
(2) The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. .
(3) If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one whole or more Registered Global Securitiesin part in global form, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities in global form that (ia) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (iib) if such Securities are Registered Securities, shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities in global form or the nominee of such DepositoryDepositary, (iiic) if such Securities are Registered Securities, shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (ivd) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” "
(4) Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Subordinated Indenture (Scottish Annuity & Life Holdings LTD), Senior Indenture (Scottish Annuity & Life Holdings LTD)
Authentication and Delivery of Securities. The Issuer At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series Series having attached thereto appropriate Coupons, if any, executed by the Issuer Company to the Trustee for authentication authentication, together with a Company Order for the applicable documents referred to below in this Section 2.4authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall thereupon authenticate and deliver such Securities Securities; provided, however, that in connection with its original issuance, no Unregistered Security shall be mailed or otherwise delivered to any location in the United States; and provided, further, that an Unregistered Security may be delivered in connection with its original issuance only if the Person entitled to receive such Unregistered Security shall have furnished a certificate in the form of Exhibit A-1 hereto dated no earlier than 15 days prior to the earlier of the date on which such Unregistered Security is delivered and the date on which any temporary Security first becomes exchangeable for such Unregistered Security in accordance with the terms of such temporary Security and this Indenture. If any Security shall be represented by a permanent global Unregistered Security, then, for purposes of this Section and Section 2.11, the notation of a beneficial owner's interest therein upon original issuance of such Security or upon the order exchange of the Issuer (contained a portion of a temporary global Security shall be deemed to be delivered in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, connection with its original issue date, interest rate and any other terms of the Securities issuance of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for beneficial owner's interest in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingpermanent global Unregistered Security. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer a Company Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingCompany;
(2) any Authorizing Resolution and/or Board Resolution, Officer’s 's Certificate or supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of any such Series were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and;
(4) At the option an Opinion of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially Counsel to the effect that:
(a) the form or forms and terms of the such Securities have been duly established pursuant to Sections 2.1 and 2.3 and comply with this Indenture;
(b) the authentication and delivery of such Securities by the Trustee are authorized and established in conformity with under the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities Securities, when executed by the Issuer authenticated and authenticated delivered by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for issued by the purchasers thereof and, Company in the manner and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be constitute valid and binding obligations of the Issuer, enforceable Company;
(d) all laws and requirements in accordance with their respective terms except respect of the execution and delivery by the Company have been complied with; and
(e) covering such other matters as the enforceability thereof Trustee may be limited by (i) bankruptcyreasonably request; provided, insolvencyhowever, reorganizationthat in the case of any Series issuable in Tranches, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and if the Trustee are entitled so has previously received the documents referred to rely. Such counsel may also state thatin Section 2.4(l)-(4) with respect to any Tranche of such Series, insofar as the Trustee shall authenticate and deliver Securities of such opinion involves factual matters, counsel has relied, to Series executed and delivered bv the extent he deems proper, Company for original issuance upon certificates of officers receipt by the Trustee of the Issuer and its Subsidiaries and certificates of public officialsapplicable Company Notice. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer Company or if the Trustee in good faith shall determine that issue of such action would expose the Trustee Securities pursuant to personal liability to existing Holders or would this Indenture will affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of in a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal manner not reasonably acceptable to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryTrustee.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Indenture (Enhance Financial Services Group Inc), Indenture (Enhance Financial Services Group Inc)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable ap- plicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedurespro- cedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, in- structions shall be promptly confirmed in writing. In authenticating such Securities Se- curities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:13
(1) an Issuer Order requesting such authentication and setting forth delivery deliv- ery instructions if the Securities and Coupons, if any, are not to be delivered deliv- ered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities Secu- rities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
; (2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemen- tal indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
; (3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Indenture (New Tenneco Inc), Indenture (New Tenneco Inc)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by specified in or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwrittena Periodic Offering, certain terms of the Securities have been established pursuant to a Board Resolution, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its subsidiaries that is material to the Issuer and its subsidiaries, considered as one enterprise, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any subsidiary, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee), in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. Notwithstanding any contrary provision herein, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Board Resolution, Officers' Certificate and Opinion of Counsel otherwise required pursuant hereto at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository designated pursuant to Section 2.3 Depositary must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Subordinated Indenture (Source One Mortgage Services Corp), Subordinated Indenture (Source One Mortgage Services Corp)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as (i) the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer insolvency or similar laws affecting creditors’ ' rights generally and (ii) rights of acceleration, if any, and the availability of equitable remedies may be limited by equitable principles of general applicability applicability; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of any material applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its "significant subsidiaries" (as defined in Article 1 of Regulation S-X under the Securities Act of 1933) that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any "significant subsidiary" (as defined above), and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Prepaid Security Indenture (Sunamerica Capital Trust Vi), Subordinated Indenture (Sunamerica Capital Trust Iv)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, PROVIDED that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Board Resolution and/or Officer’s 's Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing a Board Resolution or an Officer’s 's Certificate in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ ' rights generally generally, (ii) rights of acceleration, if any, and (iiiii) the availability of equitable remedies may be limited by equitable principles of general applicability and such counsel need express no opinion with regard to the enforceability of Section 6.6. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s 's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.” " Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 2 contracts
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingagent. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series, provided that such documents reasonably contemplate all Securities of such series) and (subject to Section Section
6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its subsidiaries that is material to the Issuer and its subsidiaries, considered as one enterprise, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any subsidiary, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the a nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Subordinated Debt Indenture (Kaufman & Broad Home Corp), Senior Debt Indenture (Kaufman & Broad Home Corp)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto (including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2b), (3c) and (4d) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (ai) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bii) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (ciii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series (including Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such procedures and (div) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2b) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.03 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3c) an Officer’s Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 2.01 and 2.3 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(ai) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(ciii) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(iv) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its subsidiaries that is material to the Issuer and its subsidiaries, considered as one enterprise, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any subsidiary, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” Each Depository Depositary designated pursuant to Section 2.3 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Junior Subordinated Indenture (Morgan Stanley Capital Trust XI), Junior Subordinated Indenture (Morgan Stanley Capital Trust XI)
Authentication and Delivery of Securities. 3.1 The Issuer may deliver Securities undertakes that the Permanent Global Security (duly executed on behalf of any series executed by the Issuer Issuer) will be available to be exchanged for interests in the Trustee for authentication together Temporary Global Security in accordance with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall Temporary Global Security.
3.2 If a Global Security is to be determined by or pursuant to such Issuer Order and procedures. If provided exchanged in accordance with its terms for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such definitive Securities, the Trustee shall be entitled Issuer undertakes that it will deliver to, or to receive (the order of, the Principal Paying Agent, as soon as reasonably practicable and in the case of subparagraphs (2), (3) and (4) below only at or any event not later than 15 days before the time of the first request of the Issuer relevant exchange is due to the Trustee to authenticate take place, definitive Securities of such series(with Coupons and a Talon for further Coupons attached) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding of €1,000,000,000 or such lesser amount as is the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series represented by the Global Security to be issued in exchange for the Global Security. Each definitive Security so delivered shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option executed on behalf of the Issuer, either one or more Opinions of Counsel, or a letter addressed .
3.3 The Issuer authorises and instructs the Principal Paying Agent to authenticate the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Global Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the any definitive Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established delivered pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee sub-clause 3.2 in accordance with the provisions of this Indenture the Trust Deed.
3.4 The Issuer authorises and delivered instructs the Principal Paying Agent to cause interests in the Temporary Global Security to be exchanged for interests in the Permanent Global Security and duly paid interests in a Global Security to be exchanged for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable definitive Securities in accordance with their respective terms except as terms. Following the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) exchange of the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered last interest in a proceeding in equity or at law). In rendering Global Security, the Principal Paying Agent shall cause such opinions, such counsel may rely upon opinions of other counsel (copies of which shall Global Security to be cancelled and delivered to the Trustee) reasonably satisfactory Issuer or as it may direct.
3.5 The Principal Paying Agent shall cause all Securities delivered to and held by it under this Agreement to be maintained in safe keeping and shall ensure that interests in the Trustee, Temporary Global Security are only exchanged for interests in which case the opinion shall state that counsel believes that counsel and Permanent Global Security in accordance with the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers terms of the Issuer Temporary Global Security and its Subsidiaries this Agreement and certificates that the definitive Securities are issued only in accordance with the terms of public officials. The Trustee shall have a Global Security, the right to decline to authenticate Trust Deed and deliver this Agreement.
3.6 So long as any of the Securities under this Section 2.4 if is outstanding the TrusteePrincipal Paying Agent shall, being advised by counsel, determines that such action may not lawfully be taken within seven days of any request by the Issuer or if the Trustee, certify to the Issuer or the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities number of definitive Securities held by it under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryAgreement.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 2 contracts
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity expiration date, original issue date, interest rate date and any other terms of the Securities of such series (including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2(ii), (3(iii) and (4(iv) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1Section 6.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1i) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount number of Warrants not exceeding the aggregate principal amount number of Warrants established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity expiration date or dates, original issue date or dates, interest rate or rates dates and any other terms of Securities of such series (including Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2ii) any Authorizing Board Resolution and/or of the Issuer, Officer’s Certificate of the Issuer and/or executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.03 by or pursuant to which the forms and terms of the Securities were established;
(3iii) an Officer’s Certificate of the Issuer setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 Section 2.01 and 2.3 Section 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4iv) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(aA) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;; and
(bB) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, andor, in the case of an offering that is not underwrittenSecurities subject to a Periodic Offering, certain terms of the Securities have been established pursuant to an Authorizing a Board Resolution or of the Issuer, an Officer’s Certificate of the Issuer or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(cC) such the Guarantee has been duly authorized by the Guarantor; and
(D) when the Securities when have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified the Securities and the Guarantee will be valid and binding obligations of the Issuer and the Guarantor, respectively, enforceable in such Opinion of Counselaccordance with their respective terms, will have been duly issued under this Indenture, and will be entitled to the benefits of this Indenture. In rendering such opinions, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except such counsel may qualify any opinions as the to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer Issuer, the Guarantor and its Subsidiaries their subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 Section 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount number of Warrants of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” Each Depository Depositary designated pursuant to Section 2.3 Section 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be either a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulationregulation or a foreign clearing agency regulated by a foreign financial regulatory authority as defined in Section 3(a)(52) of the Securities Exchange Act of 1934, including, without limitation, Euroclear Bank SA/NV and Clearstream Banking, S.A., Luxembourg.
Appears in 2 contracts
Sources: Warrant Indenture (JPMorgan Chase Financial Co. LLC), Paying Agent, Registrar & Transfer Agent and Authenticating Agent Agreement (JPMorgan Chase Financial Co. LLC)
Authentication and Delivery of Securities. 3.1 The Issuer may deliver Securities undertakes that the Permanent Global Security (duly executed on behalf of any series executed by the Issuer Issuer) will be available to be exchanged for interests in the Trustee for authentication together Temporary Global Security in accordance with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall Temporary Global Security.
3.2 If a Global Security is to be determined by or pursuant to such Issuer Order and procedures. If provided exchanged in accordance with its terms for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such definitive Securities, the Trustee shall be entitled Issuer undertakes that it will deliver to, or to receive (the order of, the Principal Paying Agent, as soon as reasonably practicable and in the case of subparagraphs (2), (3) and (4) below only at or any event not later than 15 days before the time of the first request of the Issuer relevant exchange is due to the Trustee to authenticate take place, definitive Securities of such series(with Coupons and a Talon for further Coupons attached) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding of € 900,001,000 or such lesser amount as is the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series represented by the Global Security to be issued in exchange for the Global Security. Each definitive Security so delivered shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option executed on behalf of the Issuer, either one or more Opinions of Counsel, or a letter addressed .
3.3 The Issuer authorises and instructs the Principal Paying Agent to authenticate the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Global Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the any definitive Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established delivered pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee sub-clause 3.2 in accordance with the provisions of this Indenture the Trust Deed.
3.4 The Issuer authorises and delivered instructs the Principal Paying Agent to cause interests in the Temporary Global Security to be exchanged for interests in the Permanent Global Security and duly paid interests in a Global Security to be exchanged for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable definitive Securities in accordance with their respective terms except as terms. Following the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) exchange of the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered last interest in a proceeding in equity or at law). In rendering Global Security, the Principal Paying Agent shall cause such opinions, such counsel may rely upon opinions of other counsel (copies of which shall Global Security to be cancelled and delivered to the Trustee) reasonably satisfactory Issuer or as it may direct.
3.5 The Principal Paying Agent shall cause all Securities delivered to and held by it under this Agreement to be maintained in safe custody and shall ensure that interests in the Trustee, Temporary Global Security are only exchanged for interests in which case the opinion shall state that counsel believes that counsel and Permanent Global Security in accordance with the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers terms of the Issuer Temporary Global Security and its Subsidiaries this Agreement and certificates that the definitive Securities are issued only in accordance with the terms of public officials. The Trustee shall have a Global Security, the right to decline to authenticate Trust Deed and deliver this Agreement.
3.6 So long as any of the Securities under this Section 2.4 if is outstanding the TrusteePrincipal Paying Agent shall, being advised by counsel, determines that such action may not lawfully be taken within seven days of any request by the Issuer or if the Trustee, certify to the Issuer or the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities number of definitive Securities held by it under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryAgreement.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 2 contracts
Authentication and Delivery of Securities. The At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4authentication, and the Trustee shall thereupon authenticate and deliver such Securities to the Issuer or upon the written order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer a Company Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, Securities the Trustee shall be entitled to receive (in the case of subparagraphs (2)receive, (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.15.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and deliveryany Board Resolution, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate and/or executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth 2.03 specifying the form or forms and terms of the Securities Securities;
(b) an Officer’s Certificate of the Issuer certifying the form and terms of the Securities, stating that the form or forms and terms of the Securities have been established as required pursuant to Sections 2.1 2.01 and 2.3 2.03 and comply with this Indenture, the Indenture and covering such other matters as the Trustee may reasonably request; and;
(4c) At the option an Opinion of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially Counsel to the effect that:
(ai) the form or forms and terms of the such Securities have been duly authorized established as required pursuant to Sections 2.01 and established 2.03 in conformity with the provisions of this Indenture;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture andsuch Securities, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized authenticated and delivered by the Trustee and issued by the Issuer in the manner and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be constitute valid and binding obligations of the Issuer; and
(iii) all laws and requirements in respect of the execution and delivery by the Issuer of the Securities have been complied with.
(d) if the Securities being issued are Original Issue Discount Securities, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers an Officer’s Certificate of the Issuer setting forth the Yield to Maturity for the Securities and its Subsidiaries any other facts required to compute amounts due on acceleration, unless such Yield to Maturity and certificates other facts are specified in the form of public officialsthe Securities. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryHolders.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Indenture (Nokia Corp), Indenture (Nokia Corp)
Authentication and Delivery of Securities. 3.1 The Issuer may deliver Securities undertakes that the Permanent Global Security (duly executed on behalf of any series executed by the Issuer Issuer) will be available to be exchanged for interests in the Trustee for authentication together Temporary Global Security in accordance with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall Temporary Global Security.
3.2 If a Global Security is to be determined by or pursuant to such Issuer Order and procedures. If provided exchanged in accordance with its terms for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such definitive Securities, the Trustee shall be entitled Issuer undertakes that it will deliver to, or to receive (the order of, the Principal Paying Agent, as soon as reasonably practicable and in the case of subparagraphs (2), (3) and (4) below only at or any event not later than 15 days before the time of the first request of the Issuer relevant exchange is due to the Trustee to authenticate take place, definitive Securities of such series(with Coupons and a Talon for further Coupons attached) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding of €1,000,000,000 or such lesser amount as is the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series represented by the Global Security to be issued in exchange for the Global Security. Each definitive Security so delivered shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option executed on behalf of the Issuer, either one or more Opinions of Counsel, or a letter addressed .
3.3 The Issuer authorises and instructs the Principal Paying Agent to authenticate the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Global Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the any definitive Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established delivered pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee sub-clause 3.2 in accordance with the provisions of this Indenture the Trust Deed.
3.4 The Issuer authorises and delivered instructs the Principal Paying Agent to cause interests in the Temporary Global Security to be exchanged for interests in the Permanent Global Security and duly paid interests in a Global Security to be exchanged for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable definitive Securities in accordance with their respective terms except as terms. Following the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) exchange of the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered last interest in a proceeding in equity or at law). In rendering Global Security, the Principal Paying Agent shall cause such opinions, such counsel may rely upon opinions of other counsel (copies of which shall Global Security to be cancelled and delivered to the Trustee) reasonably satisfactory Issuer or as it may direct.
3.5 The Principal Paying Agent shall cause all Securities delivered to and held by it under this Agreement to be maintained in safe custody and shall ensure that interests in the Trustee, Temporary Global Security are only exchanged for interests in which case the opinion shall state that counsel believes that counsel and Permanent Global Security in accordance with the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers terms of the Issuer Temporary Global Security and its Subsidiaries this Agreement and certificates that the definitive Securities are issued only in accordance with the terms of public officials. The Trustee shall have a Global Security, the right to decline to authenticate Trust Deed and deliver this Agreement.
3.6 So long as any of the Securities under this Section 2.4 if is outstanding the TrusteePrincipal Paying Agent shall, being advised by counsel, determines that such action may not lawfully be taken within seven days of any request by the Issuer or if the Trustee, certify to the Issuer or the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities number of definitive Securities held by it under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryAgreement.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 2 contracts
Authentication and Delivery of Securities. (1) The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (ai) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bii) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, Order and (ciii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2b) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3c) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At at the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, on one or more Opinions of Counsel, substantially to the effect that:
(ai) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(ciii) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as (i) the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer insolvency or similar laws affecting creditors’ ' rights generally and (ii) rights of acceleration, if any, and the availability of equitable remedies may be limited by equitable principles of general applicability applicability; and
(iv) that all applicable laws and requirements in respect of the execution and delivery by the Issuer of such Securities have been complied with. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he or she and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he or she has relied, to the extent he or she deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. .
(2) The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. .
(3) If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one whole or more Registered Global Securitiesin part in global form, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities in global form that (ia) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (iib) if such Securities are Registered Securities, shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities in global form or the nominee of such DepositoryDepositary, (iiic) if such Securities are Registered Securities, shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (ivd) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” "
(4) Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Subordinated Indenture (Rediff Com India LTD), Senior Indenture (Rediff Com India LTD)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as (i) the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer insolvency or similar laws affecting creditors’ ' rights generally and (ii) rights of acceleration, if any, and the availability of equitable remedies may be limited by equitable principles of general applicability applicability; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of any material applicable law or the certificate of incorporation or bylaws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its "significant subsidiaries" (as defined in Article 1 of Regulation S-X under the Securities Act of 1933) that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any "significant subsidiary" (as defined above), and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Senior Subordinated Indenture (Hawaiian Electric Industries Inc), Senior Subordinated Indenture (Hei Preferred Funding L P)
Authentication and Delivery of Securities. (1) The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) given and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (ai) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bii) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, Order and (ciii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2b) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3c) an Officer’s Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenturestating that the conditions precedent, and covering such other matters as if any, provided for in the Trustee may reasonably requestIndenture have been complied with; and
(4d) At an Opinion of Counsel stating that the option of conditions precedent, if any, provided for in the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:Indenture have been complied with.
(a2) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. .
(3) If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one whole or more Registered Global Securitiesin part in global form, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities in global form that (ia) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (iib) if such Securities are Registered Securities, shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities in global form or the nominee of such DepositoryDepositary, (iiic) if such Securities are Registered Securities, shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (ivd) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” The Trustee shall have no responsibility for any action taken or not taken by the Depositary.
(4) Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Subordinated Indenture (Aflac Inc), Senior Indenture (Aflac Inc)
Authentication and Delivery of Securities. The At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4authentication, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer a Company Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, Securities the Trustee shall be entitled to receive (in the case of subparagraphs (2)receive, (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.15.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and deliveryany Board Resolution, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution Officers’ Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.07 by or pursuant to which the forms and terms of the Securities were established;
(3b) an Officer’s Certificate setting forth Officers’ Certificates of the Issuer certifying the form or forms and terms of the Securities Securities, stating that the form or forms and terms of the Securities have been established as required pursuant to Sections 2.1 2.01 and 2.3 2.07 and comply with this the Indenture, and covering such other matters as the Trustee may reasonably request; and;
(4c) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counselprepared in accordance with Section 10.05, substantially to the effect that:
(ai) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the such Securities have been established as required pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established Section 2.07 in conformity with the provisions of this Indenture; and
(cii) such Securities Securities, when executed authenticated and delivered by the Trustee and issued by the Issuer in the manner and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be constitute valid and binding obligations of the Issuer, Issuer enforceable against the Issuer in accordance with their respective terms except as its terms.
(d) if the enforceability thereof may be limited by (i) bankruptcySecurities being issued are Original Issue Discount Securities, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditorsan Officers’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers Certificate of the Issuer setting forth the Yield to Maturity for the Securities and its Subsidiaries any other facts required to compute amounts due on acceleration, unless such Yield to Maturity and certificates other facts are specified in the form of public officialsthe Securities. Any additional debt securities will have a separate CUSIP, ISIN, Common Code or other identifying number from the debt securities originally issued of such series, unless the additional debt securities are fungible with the originally issued debt securities of the same series for U.S. federal income tax purposes. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 2.08 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryHolders.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Indenture (Smith & Nephew PLC), Indenture (Smith & Nephew PLC)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto (including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2b), (3c) and (4d) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (ai) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bii) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (ciii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series (including Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such procedures and (div) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2b) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.03 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3c) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 2.01 and 2.3 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(ai) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(ciii) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(iv) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its consolidated subsidiaries that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any U.S. governmental body, agency or court having jurisdiction over the Issuer or any of its consolidated subsidiaries, and no consent, approval or authorization of any U.S. governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Subordinated Indenture (Morgan Stanley Capital Trust VIII), Subordinated Indenture (Morgan Stanley Dean Witter & Co)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to to, or upon the order of of, the Issuer (contained in the Issuer Order referred to below in this SectionSection 2.4) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate rate, if any, and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such proceduresprocedures and agreed to by the Trustee, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating the Securities of such Securities series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates rates, if any, and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and procedures, (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writingwriting and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution and/or Officer’s the Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, Indenture and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter from legal counsel addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities of such series have been established pursuant to a Board Resolution, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) when the Securities of such Securities when series have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities of such series will not contravene any provision of applicable law or the articles of incorporation or bylaws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its Subsidiaries that is material to the Issuer and its Subsidiaries, considered as one enterprise, or, to such counsel's knowledge after the inquiry indicated therein, any judgment, order or decree of any governmental agency or any court having jurisdiction over the Issuer or any Subsidiary of the Issuer, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In addition, if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, such Opinion of Counsel shall also state that all laws and requirements with respect to the form and execution by the Issuer of the supplemental indenture with respect to the series of Securities have been complied with, the Issuer has corporate power to execute and deliver any such supplemental indenture and has taken all necessary corporate action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation of the Issuer enforceable in accordance with its terms. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New Jersey and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that both such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent he such counsel deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series to be issued in the form of Global Securities and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s instructions Depositary's instructions, and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and any other applicable statute or regulation. Reference is made to Section 13.4 concerning execution and delivery of the Guarantees.
Appears in 2 contracts
Sources: Indenture (Hovnanian Enterprises Inc), Indenture (Hovnanian Enterprises Inc)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Issuer (contained in the Issuer Order referred to below in this Section) or deliver pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order Sections 2.1, 2.3 and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingthis Section 2.4. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive provided with (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in conclusively relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, Order and (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2b) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3c) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply Certificate, complying with this Indenture, Section 11.5 hereof and covering such other matters as the Trustee may reasonably request; and
(4d) At the option of the Issuer, either Either one or more Opinions of Counsel, or or, at the option of the Issuer, a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(ai) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in ;
(iii) if the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture anda supplemental indenture, such supplemental indenture, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized executed by the Issuer and will have been established the Trustee in conformity accordance with the provisions of this Indenture; and, and subject to any exemptions, assumptions and qualifications specified in such Opinion of Counsel, will be a valid and binding obligation of the Issuer, enforceable in accordance with its terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally, (ii) rights of acceleration, if any, and (iii) the availability of equitable remedies may be limited by equitable principles of general applicability, and such counsel need express no opinion with regard to the enforceability of Section 6.6;
(civ) such Securities Securities, when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, and subject to any conditions exemptions, assumptions and qualifications specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally generally, (ii) rights of acceleration, if any, and (iiiii) the availability of equitable remedies may be limited by equitable principles of general applicability applicability, and such counsel need express no opinion with regard to the enforceability of Section 6.6; and
(regardless v) all conditions precedent to the issuance, execution, delivery, authorization and authentication of whether the Securities have been complied with. Any counsel may state that such enforceability is considered in a proceeding in equity or at law)opinions are limited to matters arising under the laws of the State of New York and the General Corporation Law of the State of Delaware. In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel it and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel it has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered formUNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryTHIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.” Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation. The Issuer initially appoints DTC to act as the Depositary for the Securities.
Appears in 2 contracts
Authentication and Delivery of Securities. (a) The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1i) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (aA) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bB) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, Order and (cC) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2ii) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3iii) an Officer’s Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4iv) At at the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, on one or more Opinions of Counsel, substantially to the effect that:
(aA) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bB) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwrittenif applicable, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(cC) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer insolvency or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability applicability; and
(regardless D) that all applicable laws and requirements in respect of whether the execution and delivery by the Issuer of such enforceability is considered in a proceeding in equity or at law)Securities have been complied with. In rendering such opinions, counsel may qualify such opinions with other customary or necessary qualifications, assumptions, limitations and exceptions. Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he or she has relied, to the extent he or she deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. .
(b) The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. .
(c) If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one whole or more Registered Global Securitiesin part in global form, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities in global form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) if such Securities are Registered Securities, shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities in global form or the nominee of such DepositoryDepositary, (iii) if such Securities are Registered Securities, shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” The Trustee shall have no responsibility for any action taken or not taken by the Depositary.
(d) Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Subordinated Indenture (Alterra Finance LLC), Subordinated Indenture (Max USA Holdings Ltd.)
Authentication and Delivery of Securities. The Issuer may shall deliver the Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures reasonably acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series (including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.18.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1) , an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall reasonably determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such seriesSecurities, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” Each Depository Depositary designated pursuant to Section 2.3 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Trust Indenture (First Responder Systems & Technology Inc.), Trust Indenture (First Responder Systems & Technology Inc.)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities and Coupons, if any, to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures reasonably acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in conclusively relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that all conditions precedent to the form or forms issuance, authorization, authentication and terms delivery of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably requestcomplied with; and
(4) At at the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture andsuch Securities, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized authenticated and delivered by the Trustee and issued by the Issuer in the manner and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be constitute valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) terms, subject to bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer reorganization and other laws of general applicability relating to or similar laws affecting the enforcement of creditors’ rights generally and to general equity principles;
(iib) the availability execution and delivery by the Issuer of equitable remedies such Securities does not conflict with United States or New York law; and
(c) all conditions precedent to the issuance, authorization, authentication and delivery of the Securities have been complied with. Any counsel may be state that such opinions are limited by equitable principles to matters arising under the laws of general applicability (regardless the State of whether such enforceability is considered in a proceeding in equity or at law)New York and the General Corporation Law of the State of Delaware. In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryIssuer’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Indenture (Smart Balance, Inc.), Indenture (Smart Balance, Inc.)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, ; provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and they will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as and entitled to the enforceability thereof may be limited by benefits of this Indenture, subject to the effect of (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer moratorium or other similar laws relating to or affecting creditors’ the rights of creditors generally and or (ii) the availability application of equitable remedies may be limited by equitable general principles of general applicability equity (regardless of whether such enforceability enforcement is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by a trust committee or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 2 contracts
Sources: Supplemental Indenture (Safeway Stores 42, Inc.), Supplemental Indenture (Albertsons Companies, Inc.)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2)receive, (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, ;
(b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to timeany Board Resolution, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate and/or executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.03 by or pursuant to which the forms and terms of the Securities were established;
(3c) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 2.01 and 2.3 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At the option an Opinion of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially Counsel to the effect that:
(ai) the form or forms and terms of the such Securities have been duly authorized established pursuant to Sections 2.01 and established in conformity 2.03 and comply with the provisions of this Indenture;,
(bii) in the case authentication and delivery of an underwritten offering, such Securities by the terms of the Securities have been duly Trustee are authorized and established in conformity with under the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(ciii) such Securities when executed authenticated and delivered by the Trustee and issued by the Issuer in the manner and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be constitute valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except and covering such other matters as the enforceability thereof Trustee may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officialsrequest. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the The Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such the Securities of a series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered formUNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryTHIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.” Each Depository Depositary designated pursuant to this Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934, as amended and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Par Technology Corp)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to to, or upon the order of of, the Issuer (contained in the Issuer Order referred to below in this SectionSection 2.4) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate rate, if any, and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such proceduresprocedures and agreed to by the Trustee, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating the Securities of such Securities series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates rates, if any, and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and procedures, (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writingwriting and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution and/or Officer’s the Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, Indenture and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter from legal counsel addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities of such series have been established pursuant to a Board Resolution, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) when the Securities of such Securities when series have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities of such series will not contravene any provision of applicable law or the articles of incorporation or bylaws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its Subsidiaries that is material to the Issuer and its Subsidiaries, considered as one enterprise, or, to such counsel's knowledge after the inquiry indicated therein, any judgment, order or decree of any governmental agency or any court having jurisdiction over the Issuer or any Subsidiary of the Issuer, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In addition, if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, such Opinion of Counsel shall also state that all laws and requirements with respect to the form and execution by the Issuer of the supplemental indenture with respect to the series of Securities have been complied with, the Issuer has corporate power to execute and deliver any such supplemental indenture and has taken all necessary corporate action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation of the Issuer enforceable in accordance with its terms. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of Delaware and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that both such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent he such counsel deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series to be issued in the form of Global Securities and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s instructions Depositary's instructions, and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The (1) At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of 11 such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
: (1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (ai) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bii) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, Order and (ciii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and procedures; (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2b) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
established; (3c) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
request; and (4d) At the option of the Issuer, either one or more Opinions of Counsel, or a letter Counsel addressed to the Trustee permitting it to rely conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, on one or more Opinions of Counsel, substantially to the effect that:
: (ai) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
Indenture; (bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
Indenture; (ciii) such when the Securities when have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by with
(i2) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. .
(3) If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one whole or more Registered Global Securitiesin part in global form, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities in global form that (ia) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (iib) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities in global form or the nominee of such DepositoryDepositary, (iiic) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (ivd) shall bear a the legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole required by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositorySection 2.9.”
(4) Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Junior Subordinated Indenture (Fidelis Insurance Holdings LTD)
Authentication and Delivery of Securities. (a) The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1i) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (aA) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bB) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, Order and (cC) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2ii) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3iii) an Officer’s Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4iv) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, on one or more Opinions of Counsel, substantially to the effect that:
(aA) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bB) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwrittenif applicable, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(cC) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer insolvency or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability applicability;
(regardless D) that all applicable laws and requirements in respect of whether the execution and delivery by the Issuer of such enforceability is considered in a proceeding in equity or at law)Securities have been complied with; and
(E) such other matters as the Trustee may reasonably request. In rendering such opinions, counsel may qualify such opinions with other customary or necessary qualifications, assumptions, limitations and exceptions. Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he or she has relied, to the extent he or she deems proper, upon certificates of officers Officer’s Certificates of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. .
(b) The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. .
(c) If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one whole or more Registered Global Securitiesin part in global form, then the Issuer shall execute and the Trustee shall, upon receipt of an Issuer Order, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities in global form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) if such Securities are Registered Securities, shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities in global form or the nominee of such DepositoryDepositary, (iii) if such Securities are Registered Securities, shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” The Trustee shall have no responsibility for any action taken or not taken by the Depositary.
(d) Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer Upon the execution and delivery of this Indenture, or from time to time thereafter, Securities, including Coupons appertaining thereto, if any, may deliver Securities of any series be executed by the Issuer and delivered to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4section, and the Trustee shall thereupon authenticate and deliver such Securities and Coupons appertaining thereto, if any, to or upon the order of the Issuer (contained in the Issuer Company Order referred to below in this Sectionsection) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer such Company Order, without any further action by the Issuer. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Company Order and proceduresor procedures authorized by such Company Order. If provided for in such procedures, such Issuer Company Order may authorize authentication and delivery of Securities pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer a Company Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Company Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer a Company Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer a Company Order, (c) the maturity date or dates, original issue date or dates, dates or interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer a Company Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Company Order may authorize authentication and delivery of Securities pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral or electronic instructions shall be promptly confirmed in writing, and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution Board Resolution, Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities and stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions an Opinion of CounselCounsel of the Issuer, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of CounselCounsel of the Issuer, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwrittena Periodic Offering, certain terms of the Securities have been established pursuant to a Board Resolution of the Issuer, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer a Company Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under the Securities and the Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or to the best of counsel's knowledge any agreement or other instrument binding upon the Issuer that is material to the Issuer or, to the best of such counsel's knowledge but without any independent investigation, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and any of its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its Board of Directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that all or a portion of the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Company Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all or a portion of the Securities of such series issued and not yet canceledcanceled or exchanged to be represented by such Registered Global Securities, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered a nominee thereof or held a custodian therefor or pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “Unless "This Security is a Registered Global Security within the meaning of the Indenture hereinafter referred to and until it is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged in whole or in part for Securities in definitive registered forma Security registered, and no transfer of this Security in whole or in part may not be transferred except as a whole by registered in the Depository to the nominee name of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any Person other than such nominee to a successor Depository Depositary or a nominee of such successor Depositorythereof, except in the limited circumstances described in the Indenture.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation."
Appears in 1 contract
Sources: Subordinated Indenture (McMoran Exploration Co /De/)
Authentication and Delivery of Securities. (a) The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto (including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (22.04(a)(ii), (32.04(a)(iii) and (42.04(a)(iv) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1i) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series (including Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2ii) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.03 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3iii) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 2.01 and 2.3 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4iv) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(aA) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bB) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(cC) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture, including the Guarantee; and
(D) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its consolidated subsidiaries that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any U.S. governmental body, agency or court having jurisdiction over the Issuer or any of its consolidated subsidiaries, and no consent, approval or authorization of any U.S. governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer or the Guarantor and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Abn Amro Bank Nv)
Authentication and Delivery of Securities. The Issuer At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series Series having attached thereto appropriate Coupons, if any, executed by the Issuer Company to the Trustee for authentication authentication, together with a Company Order for the applicable documents referred to below in this Section 2.4authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall thereupon authenticate and deliver such Securities Securities; provided, however, that in connection with its original issuance, no Unregistered Security shall be mailed or otherwise delivered to any location in the United States; and provided, further, that an Unregistered Security may be delivered in connection with its original issuance only if the Person entitled to receive such Unregistered Security shall have furnished a certificate in the form of Exhibit A-1 hereto dated no earlier than 15 days prior to the earlier of the date on which such Unregistered Security is delivered and the date on which any temporary Security first becomes exchangeable for such Unregistered Security in accordance with the terms of such temporary Security and this Indenture. If any Security shall be represented by a permanent global Unregistered Security, then, for purposes of this Section and Section 2.11, the notation of a beneficial owner's interest therein upon original issuance of such Security or upon the order exchange of the Issuer (contained a portion of a temporary global Security shall be deemed to be delivered in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, connection with its original issue date, interest rate and any other terms of the Securities issuance of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for beneficial owner's interest in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingpermanent global Unregistered Security. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer a Company Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingCompany;
(2) any Authorizing Resolution and/or Board Resolution, Officer’s 's Certificate or supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of any such Series were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and;
(4) At the option an Opinion of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially Counsel to the effect that:
(a) the form or forms and terms of the such Securities have been duly established pursuant to Sections 2.1 and 2.3 and comply with this Indenture;
(b) the authentication and delivery of such Securities by the Trustee are authorized and established in conformity with under the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities Securities, when executed by the Issuer authenticated and authenticated delivered by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for issued by the purchasers thereof and, Company in the manner and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be constitute valid and binding obligations of the Issuer, enforceable Company;
(d) all laws and requirements in accordance with their respective terms except respect of the execution and delivery by the Company have been complied with; and
(e) covering such other matters as the enforceability thereof Trustee may be limited by (i) bankruptcyreasonably request; provided, insolvencyhowever, reorganizationthat in the case of any Series issuable in Tranches, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and if the Trustee are entitled so has previously received the documents referred to rely. Such counsel may also state thatin Section 2.4(l)-(4) with respect to any Tranche of such Series, insofar as the Trustee shall authenticate and deliver Securities of such opinion involves factual matters, counsel has relied, to Series executed and delivered by the extent he deems proper, Company for original issuance upon certificates of officers receipt by the Trustee of the Issuer and its Subsidiaries and certificates of public officialsapplicable Company Notice. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer Company or if the Trustee in good faith shall determine that issue of such action would expose the Trustee Securities pursuant to personal liability to existing Holders or would this Indenture will affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of in a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal manner not reasonably acceptable to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryTrustee.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities Securities, with appropriate Coupons, if any, of any series executed by the Issuer Company to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4authentication, and the Trustee shall thereupon authenticate and deliver such said Securities and Coupons to or upon an Order by the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingCompany. In authenticating such Securities and Coupons, and accepting the additional responsibilities under this Indenture in relation to such SecuritiesSecurities and Coupons, the Trustee shall be entitled to receive (in the case of subparagraphs (2)receive, (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.17.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if a copy of any resolution or resolutions of the Securities are not to be delivered to the IssuerBoard of Directors, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered certified by the Issuer to Secretary or Assistant Secretary of the Trustee prior to Company, authorizing the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of issuance of any series of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingCoupons;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were establishedan executed supplemental Indenture, if any;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably requestOfficers' Certificate; and
(4) At an Opinion of Counsel prepared in accordance with Section 12.01 which shall also state that the option form of such Securities and Coupons has been established by or pursuant to a resolution of the Issuer, either one Board of Directors or more Opinions of Counsel, or by a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established supplemental Indenture as permitted by Section 2.02 in conformity with the provisions of this Indenture;
(b) in . A Security shall not be valid until an authorized signatory of the case Trustee manually signs the certificate of authentication on the Security. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture. The Trustee may appoint an underwritten offeringauthenticating agent reasonably acceptable to the Company to authenticate Securities and Coupons, if any, of any series. Unless limited by the terms of such appointment, an authenticating agent may authenticate Securities whenever the Securities have been duly authorized and established Trustee may do so. Each reference in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated authentication by the Trustee in accordance with includes authentication by such agent. An authenticating agent has the provisions same rights as any Registrar, paying agent or agent for service of this Indenture notices and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law)demands. In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued Unless otherwise provided in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such Security for any series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and each Security shall be denominated in an amount equal to dated the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.” Each Depository designated pursuant to Section 2.3 must, at the time date of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulationauthentication.
Appears in 1 contract
Sources: Indenture (Basin Exploration Inc)
Authentication and Delivery of Securities. The Issuer may from time to time deliver Securities of any series series, executed by the Issuer to the Trustee for authentication authentication, together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver make available for delivery such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The If so provided in the Board Resolution, Officers' Certificate or supplemental indenture establishing the Securities of any series, the maturity date, original issue interest accrual date, interest rate rate, Interest Payment Date or Dates and any other terms of any or all of the Securities of such series shall may be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions (from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed agent) in writing, by facsimile or any other method mutually agreed upon by the Issuer and Trustee. In authenticating such the Securities of a series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (but, in the case of subparagraphs (2), (3) 3 and (4) below 4 below, only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series, however, any request after the first shall be deemed to include the representation of the Issuer that the document previously delivered pursuant to subparagraphs 2, 3 and 4 below are still true and in effect) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication authen- tication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;.
(2) any Authorizing Resolution Board Resolution, Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities of such series stating (a) that the such form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, (b) the aggregate principal amount of all of the Securities outstanding under this Indenture and (c) covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) when the Securities of such Securities when series have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) terms, subject to bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar reorganization and other laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless relating to or affecting the enforcement of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinionscreditors' rights and to general principles of equity, such counsel may rely upon opinions of other counsel (copies of which shall and will be delivered entitled to the Trusteebenefits of this Indenture;
(d) reasonably satisfactory to the TrusteeIndenture has been duly authorized, in which case the opinion shall state that counsel believes that counsel executed and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable in accordance with its Subsidiaries terms, subject to bankruptcy, insolvency, reorganization and certificates other laws of public officialsgeneral applicability relating to or affecting the enforcement of creditors' rights and to general principles of equity;
(e) the issuance of the Securities will not result in any default under this Indenture, or any other contract, indenture, loan agreement or other instrument to which the Issuer is a party or by which it or any of its property is bound; and
(f) no consent, approval, authorization, order, registration or qualification of or with any governmental agency or body having jurisdiction over the Issuer is required for the execution and delivery of the Securities of such series by the Issuer, except such as have been obtained (except that no opinion need be expressed as to state securities or Blue Sky laws). The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 (other than Securities the forms and terms of which shall have been established by supplemental indenture) if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors, trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own 's rights, duties or immunities under the SecuritiesSecurities of any such series, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver make available for delivery one or more Registered Global Securities that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of all of the Securities of specified in such series issued and not yet canceledIssuer Order, (ii) shall be registered in the name of the Depository for such Registered Global Security therefor or Securities or the nominee of such Depositoryits nominee, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s 's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation."
Appears in 1 contract
Sources: Indenture (CMS Energy Corp)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to to, or upon the order of the Issuer (contained in the Issuer Order referred to below in this SectionSection 2.4) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate rate, if any, and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such proceduresprocedures and agreed to by the Trustee, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating the Securities of such Securities series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates rates, if any, and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and procedures, (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writingwriting and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution and/or Officer’s the Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, Indenture and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the IssuerIssuers, either one or more Opinions an Opinion of Counsel, or a letter from legal counsel addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities of such series have been established pursuant to a Board Resolution, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) when the Securities of such Securities when series have been executed by the Issuer and the Securities of such series have been authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities of such series will not contravene any provision of applicable law or the articles of incorporation or bylaws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its Subsidiaries that is material to the Issuer and its Subsidiaries, considered as one enterprise, or, to such counsel's knowledge after the inquiry indicated therein (which shall be reasonable), any judgment, order or decree of any governmental agency or any court having jurisdiction over the Issuer or any Subsidiary of the Issuer, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In addition, if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, such Opinion of Counsel shall also state that all laws and requirements with respect to the form and execution by the Issuer of the supplemental indenture with respect to the series of Securities have been complied with, the Issuer has corporate power to execute and deliver any such supplemental indenture and has taken all necessary corporate action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation of the Issuer enforceable in accordance with its terms. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of Delaware and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that both such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent he such counsel deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer Issuer, or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series to be issued in the form of Global Securities and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s instructions Depositary's instructions, and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and any other applicable statute or regulation.
Appears in 1 contract
Sources: Senior Subordinated Indenture (Hovnanian Enterprises Inc)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing, and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwrittena Periodic Offering, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its subsidiaries that is material to the Issuer and its subsidiaries, considered as one enterprise, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any subsidiary, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee), in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled to be represented by such Registered Global Securities, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially sub- stantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation."
Appears in 1 contract
Sources: Senior Indenture (Freeport McMoran Resource Partners Limited Partnership)
Authentication and Delivery of Securities. The Issuer ----------------------------------------- may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as (i) the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer insolvency or similar laws affecting creditors’ ' rights generally and (ii) rights of acceleration, if any, and the availability of equitable remedies may be limited by equitable principles of general applicability applicability; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of any material applicable law or the certificate of incorporation or bylaws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its "significant subsidiaries" (as defined in Article 1 of Regulation S-X under the Securities Act of 1933) that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any "significant subsidiary" (as defined above), and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer Issuers may deliver Securities of any series executed by each of the Issuer Issuers to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to to, or upon the order order, of the Issuer Issuers (contained in the Issuer Order referred to below in this SectionSection 2.4) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate rate, if any, and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such proceduresprocedures and agreed to by the Trustee, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating the Securities of such Securities series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the each Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer Issuers to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates rates, if any, and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and procedures, (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from each of the Issuer Issuers or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writingwriting and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuers that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by each such Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution and/or Officer’s Certificate the Board Resolutions, Officers' Certificates or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, Indenture and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the IssuerIssuers, either one or more Opinions an Opinion of Counsel, or a letter from legal counsel addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities of such series have been established pursuant to an Authorizing Resolution Board Resolutions, Officers' Certificates or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) when the Securities of such Securities when series have been executed by the Issuer Issuers and the Securities of such series have been authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this IndentureIndenture and will be valid and legally binding obligations of each of the Issuers, enforceable in accordance with their respective terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by each of the Issuers of, and the performance by each Issuer of its obligations under, the Securities of such series will not contravene any provision of applicable law or the articles of incorporation or bylaws of each such Issuer or any agreement or other instrument binding upon each such Issuer or any of its Subsidiaries that is material to each such Issuer and its Subsidiaries, considered as one enterprise, or, to such counsel's knowledge after the inquiry indicated therein (which shall be reasonable), any judgment, order or decree of any governmental agency or any court having jurisdiction over each such Issuer or any Subsidiary, and no consent, approval or authorization of any governmental body or agency is required for the performance by each such Issuer of its obligations under the Securities, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In addition, if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, such Opinion of Counsel shall also state that all laws and requirements with respect to the form and execution by the Issuers of the supplemental indenture with respect to the series of Securities have been complied with, each of the Issuers has corporate power to execute and deliver any such supplemental indenture and has taken all necessary corporate action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligations obligation of the Issuer, each such Issuer enforceable in accordance with their respective terms except its terms. In rendering such opinions, such counsel may qualify any opinions as the to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of Texas and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that both such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent he such counsel deems proper, upon certificates of officers of the Issuer Issuers and its their Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer either Issuer, or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer Issuers shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer Issuers shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series to be issued in the form of Global Securities and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s instructions Depositary's instructions, and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by specified in or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 2 and (4) 3 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.15.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution the Board Resolution, Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 authorizing the issuance of the Securities and by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;; and
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting to it to rely on one or more Opinions an enclosed Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(bc) in the case of an underwritten offering, the terms of when the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the articles of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its Subsidiaries that is material to the Issuer and its Subsidiaries, considered as one enterprise, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any Subsidiary, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee), in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. As to matters governed by the Laws of the State of New York, such counsel may assume that the laws of the State of New York are identical to the laws of the State of Illinois. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to all or part of the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository designated pursuant to Section 2.3 Depositary must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Illinois Power Co)
Authentication and Delivery of Securities. 3.1 The Issuer may deliver Securities undertakes that the Permanent Global Security (duly executed on behalf of any series executed by the Issuer Issuer) will be available to be exchanged for interests in the Trustee for authentication together Temporary Global Security in accordance with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall Temporary Global Security.
3.2 If a Global Security is to be determined by or pursuant to such Issuer Order and procedures. If provided exchanged in accordance with its terms for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such definitive Securities, the Trustee shall be entitled Issuer undertakes that it will deliver to, or to receive (the order of, the Principal Paying Agent, as soon as reasonably practicable and in the case of subparagraphs (2), (3) and (4) below only at or any event not later than 15 days before the time of the first request of the Issuer relevant exchange is due to the Trustee to authenticate take place, definitive Securities of such series(with Coupons and a Talon for further Coupons attached) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding of €750,000,000 or such lesser amount as is the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series represented by the Global Security to be issued in exchange for the Global Security. Each definitive Security so delivered shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option executed on behalf of the Issuer, either one or more Opinions of Counsel, or a letter addressed .
3.3 The Issuer authorises and instructs the Principal Paying Agent to authenticate the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Global Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the any definitive Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established delivered pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee sub-clause 3.2 in accordance with the provisions of this Indenture the Trust Deed.
3.4 The Issuer authorises and delivered instructs the Principal Paying Agent to cause interests in the Temporary Global Security to be exchanged for interests in the Permanent Global Security and duly paid interests in a Global Security to be exchanged for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable definitive Securities in accordance with their respective terms except as terms. Following the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) exchange of the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered last interest in a proceeding in equity or at law). In rendering Global Security, the Principal Paying Agent shall cause such opinions, such counsel may rely upon opinions of other counsel (copies of which shall Global Security to be cancelled and delivered to the Trustee) reasonably satisfactory Issuer or as it may direct.
3.5 The Principal Paying Agent shall cause all Securities delivered to and held by it under this Agreement to be maintained in safe keeping and shall ensure that interests in the Trustee, Temporary Global Security are only exchanged for interests in which case the opinion shall state that counsel believes that counsel and Permanent Global Security in accordance with the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers terms of the Issuer Temporary Global Security and its Subsidiaries this Agreement and certificates that the definitive Securities are issued only in accordance with the terms of public officials. The Trustee shall have a Global Security, the right to decline to authenticate Trust Deed and deliver this Agreement.
3.6 So long as any of the Securities under this Section 2.4 if is outstanding the TrusteePrincipal Paying Agent shall, being advised by counsel, determines that such action may not lawfully be taken within seven days of any request by the Issuer or if the Trustee, certify to the Issuer or the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities number of definitive Securities held by it under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryAgreement.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Paying Agency Agreement
Authentication and Delivery of Securities. The Issuer Subject to Section 2.3 and to Sections 4.16 and 4.17 of the IDB Lease Agreement, at any time and from time to time after the execution and delivery of this Indenture, the IDB may deliver Securities of any series executed by an Authorized Officer of the Issuer IDB to the Trustee for authentication authentication, together with an IDB Order for the applicable documents referred to below in this Section 2.4authentication and delivery of such Securities, and the Trustee shall thereupon authenticate and deliver make available for delivery such Securities in accordance with such IDB Order, without any further action by the IDB. No Security shall be secured by or entitled to any benefit under this Indenture or upon the order be valid or obligatory for any purpose unless there appears on such Security a certificate of the Issuer (contained authentication, in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to form provided for herein, executed by the Trustee by the manual signature of any Authorized Trust Officer, and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and certificate upon any other terms of the Securities of such series Security shall be determined by or pursuant to conclusive evidence, and the only evidence, that such Issuer Order Security has been duly authenticated and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingdelivered hereunder. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2)receive, (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1Section
9.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, executed Series Supplemental Indenture with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series (other than the 1995 Bonds) and any amendment of the IDB Lease Agreement expressly providing that, for original issue from time all purposes of this Indenture and the IDB Lease Agreement, the Tax-Exempt Project shall include any facilities being financed by the additional Securities and adjusting the payments under the IDB Lease Agreement to timeprovide for payments by the Mobile Energy Parties of the amounts necessary to pay the principal of, premium, if any, and interest on such additional Securities;
(b) an Officer's Certificate of the IDB certifying (i) as to resolutions of the IDB authorizing the issuance of such Securities, the execution and delivery of this Indenture (in an aggregate principal amount not exceeding the aggregate principal amount established for such seriescase of the 1995 Bonds) and the IDB Lease Agreement and (in the case of Securities other than the 1995 Bonds) the execution and delivery of the related Series Supplemental Indenture, pursuant to an Issuer Order or pursuant to procedures acceptable (ii) that all conditions precedent under this Indenture to the Trustee Trustee's authentication and delivery of such Securities have been complied with and (iii) as may be specified from time to time by an Issuer Order, the incumbency of the persons named in such Officer's Certificate;
(c) an Opinion of Counsel to the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and effect that (di) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and the terms of the Securities stating that the form or forms and terms of the such Securities have been established pursuant to by a Series Supplemental Indenture (or, in the case of the 1995 Bonds, by Section 2.17) as permitted by Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity accordance with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of (ii) the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture andof such series, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer authenticated and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated made available for delivery by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for issued by the purchasers thereof and, IDB in the manner and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indentureconstitute legal, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the IssuerIDB, enforceable against the IDB in accordance with their respective terms terms, except as the such enforceability thereof (A) may be limited by (i) applicable bankruptcy, insolvency, reorganization, liquidationfraudulent conveyance, moratorium, fraudulent transfer or moratorium and other similar laws relating to or affecting the enforcement of creditors’ ' rights and remedies generally and (iiB) the availability of equitable remedies may be limited by equitable is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering ) and the discretion of the court before which proceedings may be brought and (iii) all laws of the States of Alabama and New York and the requirements of this Indenture and the IDB Lease Agreement, in each case in respect of the execution and delivery by the IDB of such opinionsSecurities, such counsel may rely upon opinions have been complied with;
(d) an Opinion of other counsel (copies Counsel of which shall be delivered Bond Counsel to the Trusteeeffect that the exemption from Federal income tax of the interest on the 1995 Bonds and any additional Securities theretofore issued will not be adversely affected by the issuance of the additional Securities being issued; and
(e) reasonably satisfactory such other documents and evidence with respect to the Trustee, in which case the opinion shall state that counsel believes that counsel IDB and the Mobile Energy Parties as the Trustee are entitled so to relymay reasonably request. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, Prior to the extent he deems proper, upon certificates of officers of the Issuer authentication and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities delivery of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer Trustee shall execute also receive such other funds, accounts, documents, certificates, instruments or opinions as may be required by the related Series Supplemental Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the IDB, and the IDB shall deliver such Security to the Trustee shallfor cancellation as provided in Section 2.12 together with a written statement (which need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the IDB, in accordance with for all purposes of this Section Indenture such Security shall be deemed never to have been authenticated and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent delivered hereunder and shall never have been or be denominated in an amount equal entitled to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depositorybenefits hereof.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. (1) The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this SectionSection 2.4) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (ai) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bii) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, Order and (ciii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2b) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3c) an Officer’s Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At at the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, on one or more Opinions of Counsel, substantially to the effect that:
(ai) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(ciii) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as (i) the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer insolvency or similar laws affecting creditors’ rights generally and (ii) rights of acceleration, if any, and the availability of equitable remedies may be limited by equitable principles of general applicability applicability. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee), in which case the opinion shall state that such counsel believes that counsel he or she and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he or she has relied, to the extent he or she deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. .
(2) The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. .
(3) If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one whole or more Registered Global Securitiesin part in global form, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities in global form that (ia) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (iib) if such Securities are Registered Securities, shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities in global form or the nominee of such DepositoryDepositary, (iiic) if such Securities are Registered Securities, shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (ivd) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” ”
(4) Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Subordinated Indenture (AXIS Specialty Finance LLC)
Authentication and Delivery of Securities. The At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall may be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2)receive, (3) and (4) below only at or before the time first authentication of the first request of the Issuer to the Trustee to authenticate Securities of such series) , and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to provide procedures acceptable to the Trustee as may be specified for the completion of authentication and delivery of securities from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2b) any Authorizing Resolution and/or Officer’s Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3c) an Officer’s Certificate setting forth the form or forms and terms Opinion of the Securities stating Counsel, prepared in accordance with Section 11.5, which shall state
(i) that the form or forms and terms of the such Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counselbeen, or a letter addressed to the Trustee permitting it to rely on one or more Opinions will be when any conditions specified in such Opinion of CounselCounsel are satisfied, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(cii) that such Securities Securities, when executed authenticated and delivered by the Trustee and issued by the Issuer in the manner and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be constitute valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its Board of Directors or Board of Trustees, Executive Committee, or a Trust Committee of Directors or Trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryHolders.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Chubb Capital Trust Iii)
Authentication and Delivery of Securities. 3.1 The Issuer may deliver Securities undertakes that the Permanent Global Security (duly executed on behalf of any series executed by the Issuer Issuer) will be available to be exchanged for interests in the Trustee for authentication together Temporary Global Security in accordance with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall Temporary Global Security.
3.2 If a Global Security is to be determined by or pursuant to such Issuer Order and procedures. If provided exchanged in accordance with its terms for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such definitive Securities, the Trustee shall be entitled Issuer undertakes that it will deliver to, or to receive (the order of, the Principal Paying Agent, as soon as reasonably practicable and in the case of subparagraphs (2), (3) and (4) below only at or any event not later than 15 days before the time of the first request of the Issuer relevant exchange is due to the Trustee to authenticate take place, definitive Securities of such series(with Coupons and a Talon for further Coupons attached) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding of €900,000,000 or such lesser amount as is the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series represented by the Global Security to be issued in exchange for the Global Security. Each definitive Security so delivered shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option executed on behalf of the Issuer, either one or more Opinions of Counsel, or a letter addressed .
3.3 The Issuer authorises and instructs the Principal Paying Agent to authenticate the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Global Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the any definitive Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established delivered pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee sub-clause 3.2 in accordance with the provisions of this Indenture the Trust Deed.
3.4 The Issuer authorises and delivered instructs the Principal Paying Agent to cause interests in the Temporary Global Security to be exchanged for interests in the Permanent Global Security and duly paid interests in a Global Security to be exchanged for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable definitive Securities in accordance with their respective terms except as terms. Following the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) exchange of the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered last interest in a proceeding in equity or at law). In rendering Global Security, the Principal Paying Agent shall cause such opinions, such counsel may rely upon opinions of other counsel (copies of which shall Global Security to be cancelled and delivered to the Trustee) reasonably satisfactory Issuer or as it may direct.
3.5 The Principal Paying Agent shall cause all Securities delivered to and held by it under this Agreement to be maintained in safe keeping and shall ensure that interests in the Trustee, Temporary Global Security are only exchanged for interests in which case the opinion shall state that counsel believes that counsel and Permanent Global Security in accordance with the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers terms of the Issuer Temporary Global Security and its Subsidiaries this Agreement and certificates that the definitive Securities are issued only in accordance with the terms of public officials. The Trustee shall have a Global Security, the right to decline to authenticate Trust Deed and deliver this Agreement.
3.6 So long as any of the Securities under this Section 2.4 if is outstanding the TrusteePrincipal Paying Agent shall, being advised by counsel, determines that such action may not lawfully be taken within seven days of any request by the Issuer or if the Trustee, certify to the Issuer or the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities number of definitive Securities held by it under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryAgreement.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Paying Agency Agreement
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures reasonably acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto (including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2b), (3c) and (4d) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (ai) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bii) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures reasonably acceptable to the Trustee as may be specified from time to time by an Issuer Order, (ciii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series (including Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such procedures and (div) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2b) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.03 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3c) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 2.01 and 2.3 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(ai) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(ciii) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(iv) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its consolidated subsidiaries that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any U.S. governmental body, agency or court having jurisdiction over the Issuer or any of its consolidated subsidiaries, and no consent, approval or authorization of any U.S. governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall reasonably determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Nvidia Corp/Ca)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon manually authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2b), (3c) and (4d) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (ai) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bii) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (ciii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (div) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2b) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.03 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3c) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 2.01 and 2.3 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(ai) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this IndentureIndenture and all conditions precedent to authentication of the Securities have been satisfied;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(ciii) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(iv) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its subsidiaries that is material to the Issuer and its subsidiaries, considered as one enterprise, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any subsidiary, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Junior Subordinated Indenture (Pxre Capital Trust Iv)
Authentication and Delivery of Securities. 3.1 The Issuer may deliver authorises and instructs the Principal Paying Agent to authenticate the Global Securities of and any series executed by definitive Securities delivered pursuant to subclause 3.4.
3.2 The Issuer authorises and instructs the Issuer Principal Paying Agent to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained cause interests in the Issuer Order referred Temporary Global Security to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided exchanged for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (interests in the case of subparagraphs (2), (3) Permanent Global Security and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected interests in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not a Global Security to be delivered to the Issuer, PROVIDED, that, with respect to exchanged for definitive Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as terms. Following the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) exchange of the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered last interest in a proceeding Global Security, the Principal Paying Agent shall cause such Global Security to be cancelled and destroyed.
3.3 The Issuer undertakes that the Permanent Global Security (duly executed on behalf of the Issuer) will be available to be exchanged for interests in equity the Temporary Global Security in accordance with the terms of the Temporary Global Security.
3.4 If a Global Security is to be exchanged in accordance with its terms for definitive Securities, the Issuer undertakes that it will deliver to, or at law)to the order of, the Principal Paying Agent, as soon as reasonably practicable and in any event not later than 15 days before the relevant exchange is due to take place, sufficient numbers of definitive Securities (with Coupons and a Talon for further Coupons attached) to enable the Principal Paying Agent to comply with its obligations under this Agreement. In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which Each definitive Security and Coupon so delivered shall be duly executed on behalf of the Issuer.
3.5 The Principal Paying Agent shall cause all Securities delivered to and held by it under this Agreement to be maintained in safe custody and shall ensure that interests in the Trustee) reasonably satisfactory to Temporary Global Security are only exchanged for interests in the Trustee, Permanent Global Security in which case accordance with the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers terms of the Issuer Temporary Global Security and its Subsidiaries this Agreement and certificates that the definitive Securities are issued only in accordance with the terms of public officials. The Trustee shall have a Global Security, the right to decline to authenticate Trust Deed and deliver this Agreement.
3.6 So long as any of the Securities under this Section 2.4 if is outstanding the TrusteePrincipal Paying Agent shall, being advised by counsel, determines that such action may not lawfully be taken within seven days of any request by the Issuer or if the Trustee, certify to the Issuer or the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities number of definitive Securities held by it under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryAgreement.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Paying Agency Agreement
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to to, or upon the order of the Issuer (contained in the Issuer Order referred to below in this SectionSection 2.4) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate rate, if any, and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such proceduresprocedures and agreed to by the Trustee, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating the Securities of such Securities series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates rates, if any, and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and procedures, (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writingwriting and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution and/or Officer’s the Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, Indenture and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter from legal counsel addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities of such series have been established pursuant to a Board Resolution, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) when the Securities of such Securities when series have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities of such series will not contravene any provision of applicable law or the articles of incorporation or bylaws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its Subsidiaries that is material to the Issuer and its Subsidiaries, considered as one enterprise, or, to such counsel's knowledge after the inquiry indicated therein, any judgment, order or decree of any governmental agency or any court having jurisdiction over the Issuer or any Subsidiary of the Issuer, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In addition to the requirements of Section 8.4, if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, such Opinion of Counsel shall also state that all laws and requirements with respect to the form and execution by the Issuer of the supplemental indenture with respect to the series of Securities have been complied with, the Issuer has corporate power to execute and deliver any such supplemental indenture and has taken all necessary corporate action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation of the Issuer enforceable in accordance with its terms. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that both such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent he such counsel deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer Issuer, or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series to be issued in the form of Global Securities and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s instructions Depositary's instructions, and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Subordinated Indenture (Citizens Communications Co)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section ,
6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option an Opinion of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially Counsel to the effect that:
(a) the form or forms and terms of the such Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case authentication and delivery of an underwritten offeringsuch Securities and Coupons, if any, by the terms of the Securities have been duly Trustee are authorized and established in conformity with under the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such Securities and Coupons, if any, when executed authenticated and delivered by the Trustee and issued by the Issuer in the manner and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be constitute valid and binding obligations of the Issuer; and
(d) all laws and requirements in respect of the execution and delivery by the Issuer of the Securities and Coupons, enforceable in accordance with their respective terms except if any, have been complied with, and covering such other matters as the enforceability thereof Trustee may reasonably request. Notwithstanding the provisions of Section 2.3 and of the preceding paragraph, if all Securities of a series are not to be limited by (i) bankruptcyoriginally issued at one time, insolvency, reorganization, liquidation, moratorium, fraudulent transfer it shall not be necessary to deliver the Board Resolution and/or Officers' Certificate otherwise required pursuant to Section 2.3 or similar laws affecting creditors’ rights generally the Issuer Order and (ii) the availability Opinion of equitable remedies may be limited by equitable principles of general applicability (regardless of whether Counsel otherwise required pursuant to such enforceability is considered in a proceeding in equity preceding paragraph at or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered prior to the Trustee) reasonably satisfactory time of authentication of each Security of such series if such documents are delivered at or prior to the Trusteetime of authentication upon original issuance of the first Security of such series to be issued. After the original issuance of the first Security of such series to be issued, in which case any separate request by the opinion shall state Issuer that counsel believes that counsel and the Trustee are entitled so authenticate Securities of such series for original issuance will be deemed to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the extent he deems proper, upon certificates authentication and delivery of officers of the Issuer and its Subsidiaries and certificates of public officialssuch Securities. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor Depository.” Depositary". Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Cbocs Sierra Inc)
Authentication and Delivery of Securities. The Issuer may from time to time deliver Securities of any series series, executed by the Issuer to the Trustee for authentication authentication, together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver make available for delivery such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The If so provided in the Board Resolution, Officers' Certificate or supplemental indenture establishing the Securities of any series, the maturity date, original issue interest accrual date, interest rate rate, Interest Payment Date or Dates and any other terms of any or all of the Securities of such series shall may be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions (from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed agent) in writing, by facsimile or any other method mutually agreed upon by the Issuer and Trustee. In authenticating such the Securities of a series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (but, in the case of subparagraphs (2), (3) 3 and (4) below 4 below, only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series, however, any request after the first shall be deemed to include the representation of the Issuer that the document previously delivered pursuant to subparagraphs 2, 3 and 4 below are still true and in effect) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee at any time prior to the delivery to the Trustee of the Securities of such Securities series for authentication and delivery, (b) the Trustee shall authenticate and deliver the Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to such procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) if so provided in the Board Resolution or supplemental indenture establishing the Securities of such series, the maturity date or datesdate, original issue date or datesdate, interest rate rate, the Interest Payment Date or rates Dates and any other terms of any or all of the Securities of such series shall may be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral instructions in writing, by facsimile or electronic instructions from any other method mutually agreed upon by the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingand Trustee;
(2) any Authorizing Resolution Board Resolution, Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities of such series stating (a) that the such form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, (b) the aggregate principal amount of all of the Securities outstanding under this Indenture and (c) covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) when the Securities of such Securities when series have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) terms, subject to bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar reorganization and other laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless relating to or affecting the enforcement of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinionscreditors' rights and to general principles of equity, such counsel may rely upon opinions of other counsel (copies of which shall and will be delivered entitled to the Trusteebenefits of this Indenture;
(d) reasonably satisfactory to the TrusteeIndenture has been duly authorized, in which case the opinion shall state that counsel believes that counsel executed and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable in accordance with its Subsidiaries terms, subject to bankruptcy, insolvency, reorganization and certificates other laws of public officialsgeneral applicability relating to or affecting the enforcement of creditors' rights and to general principles of equity;
(e) the issuance of the Securities will not result in any default under this Indenture, or any other contract, indenture, loan agreement or other instrument to which the Issuer is a party or by which it or any of its property is bound; and
(f) no consent, approval, authorization, order, registration or qualification of or with any governmental agency or body having jurisdiction over the Issuer is required for the execution and delivery of the Securities of such series by the Issuer, except such as have been obtained (except that no opinion need be expressed as to state securities or Blue Sky laws). The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 (other than Securities the forms and terms of which shall have been established by supplemental indenture) if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors, trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own 's rights, duties or immunities under the SecuritiesSecurities of any such series, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver make available for delivery one or more Registered Global Securities that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of all of the Securities of specified in such series issued and not yet canceledIssuer Order, (ii) shall be registered in the name of the Depository for such Registered Global Security therefor or Securities or the nominee of such Depositoryits nominee, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s 's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation."
Appears in 1 contract
Sources: Indenture (CMS Energy Corp)
Authentication and Delivery of Securities. (a) The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1i) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, ,
(aA) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bB) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, Order and (cC) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2ii) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3iii) an Officer’s Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4iv) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, on one or more Opinions of Counsel, substantially to the effect that:
(aA) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bB) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwrittenif applicable, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(cC) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer insolvency or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability applicability;
(regardless D) that all applicable laws and requirements in respect of whether the execution and delivery by the Issuer of such enforceability is considered in a proceeding in equity or at law)Securities have been complied with; and
(E) such other matters as the Trustee may reasonably request. In rendering such opinions, counsel may qualify such opinions with other customary or necessary qualifications, assumptions, limitations and exceptions. Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he or she has relied, to the extent he or she deems proper, upon certificates of officers Officer’s Certificates of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. .
(b) The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. .
(c) If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one whole or more Registered Global Securitiesin part in global form, then the Issuer shall execute and the Trustee shall, upon receipt of an Issuer Order, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities in global form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) if such Securities are Registered Securities, shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities in global form or the nominee of such DepositoryDepositary, (iii) if such Securities are Registered Securities, shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” The Trustee shall have no responsibility for any action taken or not taken by the Depositary.
(d) Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Subordinated Indenture (Greenlight Capital Re, Ltd.)
Authentication and Delivery of Securities. The Issuer may from time to time deliver Securities of any series series, having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication authentication, together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The If so provided in or pursuant to the Board Resolution or supplemental indenture establishing the Securities of any series, the maturity date, original issue date, interest rate and any other terms of any or all of the Securities of such series shall and the Coupons, if any, appertaining thereto may be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (but, in the case of subparagraphs (2), (3) 3 and (4) below 4 below, only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities securities and the Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee at any time prior to the delivery to the Trustee of the Securities of such Securities series for authentication and delivery, (b) the Trustee shall authenticate and deliver the Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to such procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) if so provided in or pursuant to the Board Resolution or supplemental indenture establishing the Securities of such series, the maturity date or datesdate, original issue date or datesdate, interest rate or rates and any other terms of any or all of the Securities of such series shall may be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series and the Coupons, if any, were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities of such series and the Coupons, if any, stating that the such form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series and the Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities of such series have been established pursuant to a Board Resolution, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with the provisions of this Indenture and, and when such other terms as are to be established pursuant to an Issuer Order or procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) when the Securities of such Securities when series and the Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) terms, subject to bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar reorganization and other laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless relating to or affecting the enforcement of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinionscreditors' rights and to general principles of equity, such counsel may rely upon opinions of other counsel (copies of which shall and will be delivered entitled to the Trusteebenefits of this Indenture;
(d) reasonably satisfactory to the Trusteeexecution and delivery by the Issuer of, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state thatperformance by the Issuer of its obligations under, insofar as such opinion involves factual mattersthe Securities and Coupons, counsel has reliedif any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or, to the extent he deems properbest knowledge of such counsel, (i) any agreement or other instrument binding upon certificates the Issuer or any of officers of its subsidiaries that is material to the Issuer and its Subsidiaries subsidiaries, considered as one enterprise, or (ii) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any of its subsidiaries; and
(e) no consent, approval, authorization, order, registration or qualification of or with any governmental agency or body having jurisdiction over the Issuer is required for the execution and certificates delivery of public officialsthe Securities of such series by the Issuer, except such as have been obtained (except that no opinion need be expressed as to state securities or Blue Sky laws). The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 (other than Securities the forms and terms of which shall have been established by supplemental indenture) if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors, trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own 's rights, duties or immunities under the SecuritiesSecurities of any such series, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of all of the Securities of specified in such series issued and not yet canceledIssuer Order, (ii) shall be registered in the name of the Depository for such Registered Global Security Depositary therefor or Securities or the nominee of such Depositoryits nominee, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. 3.1 The Issuer may deliver Securities undertakes that the Permanent Global Security (duly executed on behalf of any series executed by the Issuer Issuer) will be available to be exchanged for interests in the Trustee for authentication together Temporary Global Security in accordance with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall Temporary Global Security.
3.2 If a Global Security is to be determined by or pursuant to such Issuer Order and procedures. If provided exchanged in accordance with its terms for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such definitive Securities, the Trustee shall be entitled Issuer undertakes that it will deliver to, or to receive (the order of, the Principal Paying Agent, as soon as reasonably practicable and in the case of subparagraphs (2), (3) and (4) below only at or any event not later than 15 days before the time of the first request of the Issuer relevant exchange is due to the Trustee to authenticate take place, definitive Securities of such series(with Coupons and a Talon for further Coupons attached) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding of €1,250,000,000 or such lesser amount as is the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series represented by the Global Security to be issued in exchange for the Global Security. Each definitive Security so delivered shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option executed on behalf of the Issuer, either one or more Opinions of Counsel, or a letter addressed .
3.3 The Issuer authorises and instructs the Principal Paying Agent to authenticate the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Global Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the any definitive Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established delivered pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee sub-clause 3.2 in accordance with the provisions of this Indenture the Trust Deed.
3.4 The Issuer authorises and delivered instructs the Principal Paying Agent to cause interests in the Temporary Global Security to be exchanged for interests in the Permanent Global Security and duly paid interests in a Global Security to be exchanged for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable definitive Securities in accordance with their respective terms except as terms. Following the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) exchange of the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered last interest in a proceeding in equity or at law). In rendering Global Security, the Principal Paying Agent shall cause such opinions, such counsel may rely upon opinions of other counsel (copies of which shall Global Security to be cancelled and delivered to the Trustee) reasonably satisfactory Issuer or as it may direct.
3.5 The Principal Paying Agent shall cause all Securities delivered to and held by it under this Agreement to be maintained in safe custody and shall ensure that interests in the Trustee, Temporary Global Security are only exchanged for interests in which case the opinion shall state that counsel believes that counsel and Permanent Global Security in accordance with the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers terms of the Issuer Temporary Global Security and its Subsidiaries this Agreement and certificates that the definitive Securities are issued only in accordance with the terms of public officials. The Trustee shall have a Global Security, the right to decline to authenticate Trust Deed and deliver this Agreement.
3.6 So long as any of the Securities under this Section 2.4 if is outstanding the TrusteePrincipal Paying Agent shall, being advised by counsel, determines that such action may not lawfully be taken within seven days of any request by the Issuer or if the Trustee, certify to the Issuer or the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities number of definitive Securities held by it under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryAgreement.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Paying Agency Agreement
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto (including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2b), (3c) and (4d) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (ai) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bii) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (ciii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series (including Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such procedures and (div) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2b) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.03 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3c) an Officer’s Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 2.01 and 2.3 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(ai) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(ciii) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(iv) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its consolidated subsidiaries that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree of any U.S. governmental body, agency or court having jurisdiction over the Issuer or any of its consolidated subsidiaries, and no consent, approval or authorization of any U.S. governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” Each Depository Depositary designated pursuant to Section 2.3 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer Upon the execution and delivery of this Indenture, or from time to time thereafter, Securities, including Coupons appertaining thereto, if any, may deliver Securities of any series be executed by the Issuer and delivered to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4section, and the Trustee shall thereupon authenticate and deliver such Securities and Coupons appertaining thereto, if any, to or upon the order of the Issuer (contained in the Issuer Company Order referred to below in this Sectionsection) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer a Company Order, without any further action by the Issuer. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Company Order and proceduresor procedures authorized by such Company Order. If provided for in such procedures, such Issuer Company Order may authorize authentication and delivery of Securities pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer a Company Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Company Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer a Company Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer such Company Order, (c) the maturity date or dates, original issue date or dates, dates or interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer a Company Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Company Order may authorize authentication and delivery of Securities pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral or electronic instructions shall be promptly confirmed in writing, and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution Board Resolution, Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities and stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions an Opinion of CounselCounsel of the Issuer, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of CounselCounsel of the Issuer, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwrittena Periodic Offering, certain terms of the Securities have been established pursuant to a Board Resolution of the Issuer, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer a Company Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andpur chasers thereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under the Securities and the Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of the subsidiaries of the Issuer that is material to the Issuer, considered as one enterprise with its subsidiaries, or, to the best of such counsel's knowledge but without independent investigation, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any of its subsidiaries, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and any of its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its Board of Directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that all or a portion of the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Company Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all or a portion of the Securities of such series issued and not yet canceledcancelled or exchanged to be represented by such Registered Global Securities, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered a nominee thereof or held a custodian therefor or pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “Unless This Security is a Registered Global Security within the meaning of the Indenture hereinafter referred to and until it is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged in whole or in part for Securities in definitive registered forma Security registered, and no transfer of this Security in whole or in part may not be transferred except as a whole by registered in the Depository to the nominee name of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any Person other than such nominee to a successor Depository Depositary or a nominee of such successor Depositorythereof, except in the limited circumstances described in the Indenture.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation."
Appears in 1 contract
Sources: Senior Indenture (Freeport McMoran Copper & Gold Inc)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingagent. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series, provided that such documents reasonably contemplate all Securities of such series) and (subject to Section Section
6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to a Board Resolution, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its subsidiaries that is material to the Issuer and its subsidiaries, considered as one enterprise, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any subsidiary, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the a nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Senior Subordinated Debt Indenture (Kaufman & Broad Home Corp)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, Issuer provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 2.l and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its subsidiaries that is material to the Issuer and its subsidiaries, considered as one enterprise, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any subsidiary whose assets are five percent or more of the consolidated assets of the Issuer, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Nyc Newco Inc)
Authentication and Delivery of Securities. (a) The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1i) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a1) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b2) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, Order and (c3) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2ii) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3iii) an Officer’s Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections Section 2.1 and Section 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4iv) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a1) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(2) the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b3) in the case of an underwritten offering, the terms of when the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as terms; and
(4) that all applicable laws and requirements in respect of the execution and delivery by the Issuer of such Securities have been complied with. In rendering such opinions, any counsel may qualify any opinions by stating that the validity or enforceability thereof of any agreements or instruments may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited creditors and by equitable general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee), in which case the opinion shall state that such counsel believes that counsel he or she and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he or she has relied, to the extent he or she deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. .
(b) The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. .
(c) If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one whole or more Registered Global Securitiesin part in global form, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities in global form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) if such Securities are Registered Securities, shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities in global form or the nominee of such DepositoryDepositary, (iii) if such Securities are Registered Securities, shall be retained by the Trustee as custodian for such Depositary or delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” ”
(d) Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Senior Indenture (Enstar Group LTD)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto (including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2ii), (3iii) and (4iv) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1i) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series (including Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2ii) any Authorizing Resolution Board Resolution, Officers’ Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.03 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3iii) an Officer’s Officers’ Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 2.01 and 2.3 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4iv) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(aA) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bB) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to a Board Resolution, an Authorizing Resolution Officers’ Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(cC) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(D) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its consolidated subsidiaries that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree of any U.S. governmental body, agency or court having jurisdiction over the Issuer or any of its consolidated subsidiaries, and no consent, approval or authorization of any U.S. governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” Each Depository Depositary designated pursuant to Section 2.3 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2)receive, (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, ;
(b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to timeany Board Resolution, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate and/or executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.03 by or pursuant to which the forms and terms of the Securities were established;
(3c) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 2.01 and 2.3 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At the option an Opinion of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially Counsel to the effect that:
(ai) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the such Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance Sections 2.01 and 2.03 and comply with this Indenture and, when Indenture,
(ii) the authentication and delivery of such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized Securities by the Issuer and will have been established in conformity with Trustee are authorized under the provisions of this Indenture; and,
(ciii) this Indenture and such Securities when executed authenticated and delivered by the Trustee and issued by the Issuer in the manner and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be constitute valid and binding obligations of the Issuer, enforceable and
(iv) all laws and requirements in accordance with their respective terms except respect of the execution and delivery by the Issuer of the Securities have been complied with, and covering such other matters as the enforceability thereof Trustee may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officialsrequest. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the The Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such the Securities of a series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be retained by the Trustee as custodian for such Depositary or delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” Each Depository Depositary designated pursuant to this Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Idex Corp /De/)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter letters addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the articles of incorporation or regulations of the Issuer or any agreement or other instrument binding upon the Issuer or any of its Subsidiaries that is material to the Issuer and its Subsidiaries, considered as one enterprise, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any Subsidiary and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as the enforceability thereof are specified and have been obtained and such as may be limited required by (i) bankruptcythe securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law)if any. In rendering such opinions, such counsel may rely upon qualify any opinions of other counsel (copies of which shall be delivered as to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised enforceability by counsel, determines stating that such action enforceability may not lawfully be taken limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee rights and remedies of creditors and is subject to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities general principles of a series are to be issued in the form equity (regardless of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.whether such
Appears in 1 contract
Sources: Indenture (Lubrizol Corp)
Authentication and Delivery of Securities. The Issuer may ----------------------------------------- deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver make available for delivery such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver make available for delivery Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as (i) the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer insolvency or similar laws affecting creditors’ ' rights generally and (ii) rights of acceleration, if any, and the availability of equitable remedies may be limited by equitable principles of general applicability applicability; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of any material applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its "significant subsidiaries" (as defined in Article 1 of Regulation S-X under the Securities Act of 1933) that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any "significant subsidiary" (as defined above), and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver make available for delivery any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver make available for delivery one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Prepaid Security Indenture (Household International Inc)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons and Guarantees, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities Securities, Guarantees and Coupons, if any, to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities and Guarantees of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities Securities, Guarantees and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities Securities, Guarantees and Coupons, if any, were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities Securities, Guarantees and Coupons, if any, stating that the form or forms and terms of the Securities Securities, Guarantees and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities Securities, Guarantees and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities Securities, Guarantees and Coupons, if any, when executed by the Issuer and the Guarantor, as applicable and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally generally, (ii) rights of acceleration, if any, and (iiiii) the availability of equitable remedies may be limited by equitable principles of general applicability and such counsel need express no opinion with regard to the enforceability of Section 6.6 or of a judgment denominated in a currency other than Dollars. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Plum Creek Timber Co Inc)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures reasonably acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto (including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1) , an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (ai) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) ii the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures reasonably acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) ii the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series (including Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such procedures and (d) iv if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall reasonably determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Nvidia Corp/Ca)
Authentication and Delivery of Securities. The (a) Any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication authentication, together with an Issuer Order in the applicable documents referred to below form set out in this Section 2.4Exhibit B for the authentication and delivery of such Securities, and the Trustee shall thereupon authenticate and deliver make available for delivery such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to accordance with such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and without any other terms of further action by the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingIssuer. In authenticating such Securities and accepting accordance with the additional responsibilities under this Indenture in relation to such SecuritiesRegistration Rights Agreement, the Trustee shall be entitled to receive (will authenticate and make available for delivery Exchange Securities in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities exchange for authentication and delivery, (b) the Initial Securities. The Trustee shall authenticate and deliver Exchange Securities of such series only for original issue from time to time, in an aggregate a principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;Initial Securities.
(b) No Security shall be secured by or entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication, substantially in the case form provided for in Section 2.4, executed by the Trustee by the manual signature of an underwritten offeringany Authorized Signatory, and such certificate upon any Securities shall be conclusive evidence, and the terms of the Securities have only evidence, that such Security has been duly authorized authenticated and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; anddelivered hereunder.
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any the Securities under this Section 2.4 2.3 if the Trustee, being advised by counselafter receipt of an Opinion of Counsel, determines that such action may not lawfully be taken by the Issuer or the Trustee or if the Trustee in good faith by its Board of Directors, board of trustees, executive committee, a trust committee of directors or trustees or Responsible Officer shall determine that such action would does not comply with the provisions of this Indenture or any document or instrument delivered in connection herewith, or could expose the Trustee to personal liability liability. Prior to existing Holders or would affect the Trustee’s own rights, duties or immunities under authentication and delivery of the Securities, this Indenture the Trustee shall also receive such other funds, accounts, documents, certificates, instruments or otherwise. If opinions as may be required thereunder or it may request in order to provide it with assurances that all action necessary in connection therewith has been taken.
(d) Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued or sold by the Issuer, and the Issuer shall establish pursuant deliver such Security to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, for cancellation as provided in accordance with Section 2.18 for all purposes of this Section Indenture such Security shall be deemed never to have been authenticated and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent delivered hereunder and shall never have been or be denominated in an amount equal entitled to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depositorybenefits hereof.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Bank Bradesco)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, ; PROVIDED that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing supplemental indenture hereto, Board Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of CounselCounsel complying with Section 10.5, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established in conformity Counsel complying with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law)Section 10.5. In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Exelon Corp)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Indenture Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Indenture Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Indenture Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto (including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Indenture Trustee shall be entitled to receive (in the case of subparagraphs (2b), (3c) and (4d) below only at or before the time of the first request of the Issuer to the Indenture Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (ai) such Issuer Order may be delivered by the Issuer to the Indenture Trustee prior to the delivery to the Indenture Trustee of such Securities for authentication and delivery, (bii) the Indenture Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Indenture Trustee as may be specified from time to time by an Issuer Order, (ciii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series (including Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such procedures and (div) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2b) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.03 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3c) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 2.01 and 2.3 2.03 and comply with this Indenture, and covering such other matters as the Indenture Trustee may reasonably request; and
(4d) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(ai) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions terms of this Indenture;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions terms of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with the terms of this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions terms of this Indenture; and;
(ciii) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their respective terms except terms, and will be entitled to the benefits of this Indenture;
(iv) no consent, approval, authorization, order, registration or qualification of or with any federal, New York or Wisconsin governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law, or, to such counsel's knowledge, any federal, New York or Wisconsin court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issuance or sale of the Securities and Coupons, if any, by the Issuer; and
(v) the issuance and sale of the Securities and Coupons, if any, by the Issuer will not breach or result in a default under, (a) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument identified on an attached schedule furnished to such counsel by the Issuer and which the Issuer has represented lists all material agreements and instruments to which it or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any of the property or assets of the Issuer or any of its subsidiaries is subject, (b) the certificate of incorporation or by-laws of the Issuer or (c) any federal, New York or Wisconsin statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal, New York or Wisconsin statute or the Delaware General Corporation Law or any order known to us issued pursuant to any federal, New York or Wisconsin statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Issuer or any of its subsidiaries or any of their properties, except, in the case of clauses (a) and (c), as would not, individually or in the aggregate, have a material adverse effect. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Indenture Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Indenture Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Indenture Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Indenture Trustee to personal liability to existing Holders or would affect the Indenture Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Indenture Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Indenture Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Junior Subordinated Indenture (GW Capital Trust II)
Authentication and Delivery of Securities. (a) The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series (including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs clause (2ii), clause (3iii) and clause (4iv) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1Section 6.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1i) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (aA) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (bB) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (cC) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series (including Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such procedures and (dD) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2ii) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section 2.1 2.01 and 2.3 Section 2.03 by or pursuant to which the forms and terms of the Securities were established;
(3iii) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 Section 2.01 and 2.3 Section 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4iv) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, Counsel or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(aA) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(bB) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(cC) such when the Securities when have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(D) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its consolidated subsidiaries that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree of any U.S. governmental body, agency or court having jurisdiction over the Issuer or any of its consolidated subsidiaries, and no consent, approval or authorization of any U.S. governmental body or agency is required for the performance by the Issuer of its obligations under the Securities except as are specified and have been obtained or as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In rendering such opinions, such counsel may make such exceptions and qualifications as are reasonably acceptable to the Trustee; in particular, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon any certificates of officers or other appropriate employees of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 Section 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Trustee, as custodian for the Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” Each Depository Depositary designated pursuant to Section 2.3 Section 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Subordinated Indenture (Bbva Compass Bancshares, Inc)
Authentication and Delivery of Securities. The Issuer Upon the execution and delivery of this Indenture, or from time to time thereafter, Securities, including Coupons appertaining thereto, if any, may deliver Securities of any series be executed by the Issuer and delivered to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4section, and the Trustee shall thereupon authenticate and deliver such Securities and Coupons appertaining thereto, if any, to or upon the order of the Issuer (contained in the Issuer Company Order referred to below in this Sectionsection) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer a Company Order, without any further action by the Issuer. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Company Order and proceduresor procedures authorized by such Company Order. If provided for in such procedures, such Issuer Company Order may authorize authentication and delivery of Securities pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer a Company Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Company Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer a Company Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer such Company Order, (c) the maturity date or dates, original issue date or dates, dates or interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer a Company Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Company Order may authorize authentication and delivery of Securities pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral or electronic instructions shall be promptly confirmed in writing, and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution Board Resolution, Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities and stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions an Opinion of CounselCounsel of the Issuer, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of CounselCounsel of the Issuer, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity con- formity with the provisions of this Indenture, and, in the case of an offering that is not underwrittena Periodic Offering, certain terms of the Securities have been established pursuant to a Board Resolution of the Issuer, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer a Company Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under the Securities and the Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of the subsidiaries of the Issuer that is material to the Issuer, considered as one enterprise with its subsidiaries, or, to the best of such counsel's knowledge but without independent investigation, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any of its subsidiaries, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and any of its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its Board of Directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that all or a portion of the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Company Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all or a portion of the Securities of such series issued and not yet canceledcancelled or exchanged to be represented by such Registered Global Securities, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered a nominee thereof or held a custodian therefor or pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “Unless "This Security is a Registered Global Security within the meaning of the Indenture hereinafter referred to and until it is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged in whole or in part for Securities in definitive registered forma Security registered, and no transfer of this Security in whole or in part may not be transferred except as a whole by registered in the Depository to the nominee name of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any Person other than such nominee to a successor Depository Depositary or a nominee of such successor Depositorythereof, except in the limited circumstances described in the Indenture.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation."
Appears in 1 contract
Sources: Senior Indenture (Freeport McMoran Copper & Gold Inc)
Authentication and Delivery of Securities. The Issuer At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series Series having attached thereto appropriate Coupons, if any, executed by the Issuer Company to the Trustee for authentication authentication, together with a Company Order for the applicable documents referred to below in this Section 2.4authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall thereupon authenticate and deliver such Securities Securities; provided, however, that in connection with its original issuance, no Unregistered Security shall be mailed or otherwise delivered to any location in the United States; and provided, further, that an Unregistered Security may be delivered in connection with its original issuance only if the Person entitled to receive such Unregistered Security shall have furnished a certificate in the form of Exhibit A-1 hereto dated no earlier than 15 days prior to the earlier of the date on which such Unregistered Security is delivered and the date on which any temporary Security first becomes exchangeable for such Unregistered Security in accordance with the terms of such temporary Security and this Indenture. If any Security shall be represented by a permanent global Unregistered Security, then, for purposes of this Section and Section 2.11, the notation of a beneficial owner's interest therein upon original issuance of such Security or upon the order exchange of the Issuer (contained a portion of a temporary global Security shall be deemed to be delivered in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, connection with its original issue date, interest rate and any other terms of the Securities issuance of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for beneficial owner's interest in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingpermanent global Unregistered Security. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer a Company Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingCompany;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of any such Series were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections Section 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and;
(4) At the option an Opinion of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially Counsel to the effect that:
(a) the form or forms and terms of the such Securities have been duly established pursuant to Sections 2.1 and 2.3 and comply with this Indenture;
(b) the authentication and delivery of such Securities by the Trustee are authorized and established in conformity with under the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities Securities, when executed by the Issuer authenticated and authenticated delivered by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for issued by the purchasers thereof and, Company in the manner and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be constitute valid and binding obligations of the Issuer, enforceable Company;
(d) all laws and requirements in accordance with their respective terms except respect of the execution and delivery by the Company have been complied with;
(e) covering such other matters as the enforceability thereof Trustee may be limited by (i) bankruptcyreasonably request; provided, insolvencyhowever, reorganizationthat in the case of any Series issuable in Tranches, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and if the Trustee are entitled so has previously received the documents referred to rely. Such counsel may also state thatin Section 2.4(1)-(4) with respect to any Tranche of such Series, insofar as the Trustee shall authenticate and deliver Securities of such opinion involves factual matters, counsel has relied, to Series executed and delivered by the extent he deems proper, Company for original issuance upon certificates of officers receipt by the Trustee of the Issuer and its Subsidiaries and certificates of public officialsapplicable Company Notice. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer Company or if the Trustee in good faith shall determine that issue of such action would expose the Trustee Securities pursuant to personal liability to existing Holders or would this Indenture will affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of in a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal manner not reasonably acceptable to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryTrustee.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Cna Financial Corp)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by specified in or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.15.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Illinova Corp)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver make available for delivery such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver make available for delivery Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as (i) the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer insolvency or similar laws affecting creditors’ ' rights generally and (ii) rights of acceleration, if any, and the availability of equitable remedies may be limited by equitable principles of general applicability applicability; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of any material applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its "significant subsidiaries" (as defined in Article 1 of Regulation S-X under the Securities Act of 1933) that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any "significant subsidiary" (as defined above), and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver make available for delivery any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver make available for delivery one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series Series having attached thereto appropriate Coupons, if any, executed by the Issuer Company to the Trustee for authentication authentication, together with a Company Order for the applicable documents referred to below in this Section 2.4authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall thereupon authenticate and deliver such Securities Securities; provided, however, that in connection with its original issuance, no Unregistered Security shall be mailed or otherwise delivered to any location in the United States; and provided, further, that an Unregistered Security may be delivered in connection with its original issuance only if the Person entitled to receive such Unregistered Security shall have furnished a certificate in the form of Exhibit A-1 hereto dated no earlier than 15 days prior to the earlier of the date on which such Unregistered Security is delivered and the date on which any temporary Security first becomes exchangeable for such Unregistered Security in accordance with the terms of such temporary Security and this Indenture. If any Security shall be represented by a permanent global Unregistered Security, then, for purposes of this Section and Section 2.11, the notation of a beneficial owner's interest therein upon original issuance of such Security or upon the order exchange of the Issuer (contained a portion of a temporary global Security shall be deemed to be delivered in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, connection with its original issue date, interest rate and any other terms of the Securities issuance of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for beneficial owner's interest in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingpermanent global Unregistered Security. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer a Company Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingCompany;
(2) any Authorizing Resolution and/or Board Resolution, Officer’s 's Certificate or supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of any such Series were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections Sections
2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and;
(4) At the option an Opinion of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially Counsel to the effect that:
(a) the form or forms and terms of the such Securities have been duly established pursuant to Sections 2.1 and 2.3 and comply with this Indenture;
(b) the authentication and delivery of such Securities by the Trustee are authorized and established in conformity with under the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities Securities, when executed by the Issuer authenticated and authenticated delivered by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for issued by the purchasers thereof and, Company in the manner and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be constitute valid and binding obligations of the Issuer, enforceable Company;
(d) all laws and requirements in accordance with their respective terms except respect of the execution and delivery by the Company have been complied with; and
(e) covering such other matters as the enforceability thereof Trustee may be limited by (i) bankruptcyreasonably request; provided, insolvencyhowever, reorganizationthat in the case of any Series issuable in Tranches, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and if the Trustee are entitled so has previously received the documents referred to rely. Such counsel may also state thatin Section 2.4(l)-(4) with respect to any Tranche of such Series, insofar as the Trustee shall authenticate and deliver Securities of such opinion involves factual matters, counsel has relied, to Series executed and delivered bv the extent he deems proper, Company for original issuance upon certificates of officers receipt by the Trustee of the Issuer and its Subsidiaries and certificates of public officialsapplicable Company Notice. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer Company or if the Trustee in good faith shall determine that issue of such action would expose the Trustee Securities pursuant to personal liability to existing Holders or would this Indenture will affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of in a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal manner not reasonably acceptable to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryTrustee.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Issuer Company to the Trustee for authentication authentication, together with a Company Order for the applicable documents referred to below in this Section 2.4authentication and delivery of such Securities, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to accordance with such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Company Order. The maturity date, original issue date, interest rate and any other If the form or terms of the Securities of such the series shall be determined by have been established in or pursuant to such Issuer Order one or more Board Resolutions as permitted by Section 2.01 and procedures. If provided for 2.03, in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled provided, in addition to receive (in the case Officers’ Certificate and Opinion of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer Counsel required to be furnished to the Trustee pursuant to authenticate Securities of such series) and (Section 13.04, and, subject to Section 6.1) 7.01, shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities Opinion of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect thatCounsel stating:
(a) that the form of such Securities has been established by or forms of the Securities have pursuant to a Board Resolution as permitted by Section 2.01, and that such form has been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, that the terms (or the manner of determining the Securities have been duly authorized and established in conformity with the provisions terms) of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the such Securities have been established by or pursuant to an Authorizing a Board Resolution or an Officer’s Certificate in accordance with this Indenture andas permitted by Section 2.03, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all and that such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) that such Securities Securities, when executed by the Issuer authenticated and authenticated delivered by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for issued by the purchasers thereof and, Company in the manner and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be constitute valid and legally binding obligations of the IssuerCompany, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) terms, subject to bankruptcy, insolvency, fraudulent transfer, preference, reorganization, liquidation, moratorium, fraudulent transfer rehabilitation, or similar laws and legal principles relating to or affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable general principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officialsequity. The Trustee shall have the right to decline not be required to authenticate and deliver any such Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that issue of such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee Securities pursuant to personal liability to existing Holders or would this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities, Securities and this Indenture or otherwiseotherwise in a manner which is not reasonably acceptable to the Trustee. If any Security shall have been authenticated and delivered hereunder but never issued and sold by the Issuer Company, and the Company shall establish pursuant deliver such Security to the Trustee for cancellation as provided in Section 2.3 that 2.14, such Security shall for all purposes of this Indenture be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture. The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate Securities of a series are to be issued in any series. Unless limited by the form terms of one or more Registered Global Securitiessuch appointment, then the Issuer shall execute and an authenticating agent may authenticate Securities whenever the Trustee shall, may do so. Each reference in accordance with this Section and the Issuer Order with respect Indenture to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered authentication by the Trustee to includes authentication by such Depository agent. An authenticating agent has the same rights under Section 7.03to deal with the Company and its Subsidiaries and Affiliates as any Registrar, Paying Agent or delivered or held pursuant to such Depository’s instructions and (iv) Conversion Agent. Each Security shall bear a legend substantially to be dated the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.” Each Depository designated pursuant to Section 2.3 must, at the time date of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulationauthentication.
Appears in 1 contract
Sources: Indenture (Orgenesis Inc.)
Authentication and Delivery of Securities. 3.1 The Issuer may deliver Securities undertakes that the Permanent Global Security (duly executed on behalf of any series executed by the Issuer Issuer) will be available to be exchanged for interests in the Trustee for authentication together Temporary Global Security in accordance with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall Temporary Global Security.
3.2 If a Global Security is to be determined by or pursuant to such Issuer Order and procedures. If provided exchanged in accordance with its terms for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such definitive Securities, the Trustee shall be entitled Issuer undertakes that it will deliver to, or to receive (the order of, the Principal Paying Agent, as soon as reasonably practicable and in the case of subparagraphs (2), (3) and (4) below only at or any event not later than 15 days before the time of the first request of the Issuer relevant exchange is due to the Trustee to authenticate take place, definitive Securities of such series(with Coupons and a Talon for further Coupons attached) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding of €600,000,000 or such lesser amount as is the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series represented by the Global Security to be issued in exchange for the Global Security. Each definitive Security so delivered shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option executed on behalf of the Issuer, either one or more Opinions of Counsel, or a letter addressed .
3.3 The Issuer authorises and instructs the Principal Paying Agent to authenticate the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Global Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the any definitive Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established delivered pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee sub-clause 3.2 in accordance with the provisions of this Indenture the Trust Deed.
3.4 The Issuer authorises and delivered instructs the Principal Paying Agent to cause interests in the Temporary Global Security to be exchanged for interests in the Permanent Global Security and duly paid interests in a Global Security to be exchanged for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable definitive Securities in accordance with their respective terms except as terms. Following the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) exchange of the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered last interest in a proceeding in equity or at law). In rendering Global Security, the Principal Paying Agent shall cause such opinions, such counsel may rely upon opinions of other counsel (copies of which shall Global Security to be cancelled and delivered to the Trustee) reasonably satisfactory Issuer or as it may direct.
3.5 The Principal Paying Agent shall cause all Securities delivered to and held by it under this Agreement to be maintained in safe keeping and shall ensure that interests in the Trustee, Temporary Global Security are only exchanged for interests in which case the opinion shall state that counsel believes that counsel and Permanent Global Security in accordance with the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers terms of the Issuer Temporary Global Security and its Subsidiaries this Agreement and certificates that the definitive Securities are issued only in accordance with the terms of public officials. The Trustee shall have a Global Security, the right to decline to authenticate Trust Deed and deliver this Agreement.
3.6 So long as any of the Securities under this Section 2.4 if is outstanding the TrusteePrincipal Paying Agent shall, being advised by counsel, determines that such action may not lawfully be taken within seven days of any request by the Issuer or if the Trustee, certify to the Issuer or the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities number of definitive Securities held by it under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryAgreement.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Paying Agency Agreement
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer having endorsed thereon Guarantees executed by the Guarantor to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to to, or upon the order of the Issuer (contained in the Issuer Order referred to below in this SectionSection 2.4) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate rate, if any, and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such proceduresprocedures and agreed to by the Trustee, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating the Securities of such Securities series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities of such series are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates rates, if any, and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (dprocedures,(d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writingwriting and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution and/or Officer’s the Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, Indenture and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter from legal counsel addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series and the related Guarantees have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series and the related Guarantees have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities of such series have been established pursuant to a Board Resolution, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer or the Guarantor, as the case may be, and will have been established in conformity with the provisions of this Indenture; and;
(c) when the Securities of such Securities when series have been executed bythe Issuer and the Guarantees endorsed thereon have been executed by the Issuer Guarantor and the Securities of such series have been authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this IndentureIndenture and will be valid and legally binding obligations of the Issuer and the Guarantor, respectively, enforceable in accordance with their respective terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer and the Guarantor, as the case may be, of, and the performance by the Issuer and the Guarantor, as the case may be, of its obligations under, the Securities of such series and the Guarantees endorsed thereon will not contravene any provision of applicable law or the articles of incorporation or bylaws of the Issuer or the Guarantor or any agreement or other instrument binding upon the Issuer or the Guarantor or any of its Subsidiaries that is material to the Guarantor and its Subsidiaries, considered as one enterprise, or, to such counsel's knowledge after the inquiry indicated therein (which shall be reasonable), any judgment, order or decree of any governmental agency or any court having jurisdiction over the Issuer, the Guarantor or any Subsidiary, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer and the Guarantor of their respective obligations under the Securities and the Guarantees, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In addition, if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, such Opinion of Counsel shall also state that all laws and requirements with respect to the form and execution by the Issuer and the Guarantor of the supplemental indenture with respect to the series of Securities have been complied with, the Issuer and the Guarantor each has corporate power to execute and deliver any such supplemental indenture and has taken all necessary corporate action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligations obligation of the Issuer, Issuer and the Guarantor enforceable in accordance with their respective terms except its terms. In rendering such opinions, such counsel may qualify any opinions as the to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of Texas and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that both such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent he such counsel deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer Issuer, or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities (and the Guarantor shall execute the Guarantees endorsed thereon) that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series to be issued in the form of Global Securities and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s instructions Depositary's instructions, and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to to, or upon the order of of, the Issuer (contained in the Issuer Order referred to below in this SectionSection 2.4) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate rate, if any, and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such proceduresprocedures and agreed to by the Trustee, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating the Securities of such Securities series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates rates, if any, and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and procedures, (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writingwriting and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution and/or Officer’s the Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, Indenture and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter from legal counsel addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities of such series have been established pursuant to a Board Resolution, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) when the Securities of such Securities when series have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities of such series will not contravene any provision of applicable law or the articles of incorporation or bylaws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its Subsidiaries that is material to the Issuer and its Subsidiaries, considered as one enterprise, or, to such counsel's knowledge after the inquiry indicated therein, any judgment, order or decree of any governmental agency or any court having jurisdiction over the Issuer or any Subsidiary of the Issuer, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In addition to the requirements of Section 8.4, if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, such Opinion of Counsel shall also state that all laws and requirements with respect to the form and execution by the Issuer of the supplemental indenture with respect to the series of Securities have been complied with, the Issuer has corporate power to execute and deliver any such supplemental indenture and has taken all necessary corporate action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation of the Issuer enforceable in accordance with its terms. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that both such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent he such counsel deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series to be issued in the form of Global Securities and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s instructions Depositary's instructions, and (iv) shall bear a legend substantially to the following effect: “"Unless and until it this certificate is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole presented by the Depository to the nominee an authorized representative of the Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by a nominee an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depositoryregistered owner hereof, Cede & Co., has an interest herein.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to to, or upon the order of the Issuer (contained in the Issuer Order referred to below in this SectionSection 2.4) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate rate, if any, and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such proceduresprocedures and agreed to by the Trustee, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating the Securities of such Securities series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates rates, if any, and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and procedures, (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writingwriting and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution and/or Officer’s the Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, Indenture and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter from legal counsel addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities of such series have been established pursuant to a Board Resolution, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) when the Securities of such Securities when series have been executed by the Issuer and the Securities of such series have been authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities of such series will not contravene any provision of applicable law or the articles of incorporation or bylaws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its Subsidiaries that is material to the Issuer and its Subsidiaries, considered as one enterprise, or, to such counsel's knowledge after the inquiry indicated therein (which shall be reasonable), any judgment, order or decree of any governmental agency or any court having jurisdiction over the Issuer or any Subsidiary of the Issuer, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In addition, if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, such Opinion of Counsel shall also state that all laws and requirements with respect to the form and execution by the Issuer of the supplemental indenture with respect to the series of Securities have been complied with, the Issuer has corporate power to execute and deliver any such supplemental indenture and has taken all necessary corporate action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation of the Issuer enforceable in accordance with its terms. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of Delaware and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that both such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent he such counsel deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer Issuer, or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series to be issued in the form of Global Securities and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s instructions Depositary's instructions, and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer may from time to time deliver Securities of any series series, executed by the Issuer to the Trustee for authentication authentication, together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver make available for delivery such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The If so provided in the Board Resolution, Officers' Certificate or supplemental indenture establishing the Securities of any series, the maturity date, original issue interest accrual date, interest rate rate, Interest Payment Date or Dates and any other terms of any or all of the Securities of such series shall may be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions (from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed agent) in writing, by facsimile or any other method mutually agreed upon by the Issuer and Trustee. In authenticating such the Securities of a series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (but, in the case of subparagraphs (2b), (3c) and (4d) below below, only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series, however, any request after the first shall be deemed to include the representation of the Issuer that the document previously delivered pursuant to subparagraphs (b), (c) and (d) below are still true and in effect) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, .
(b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to timeany Board Resolution, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3c) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities of such series stating (i) that the such form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, (ii) the aggregate principal amount of all of the Securities outstanding under this Indenture and (iii) covering such other matters as the Trustee may reasonably request; and
(4d) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a1) the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture;
(b2) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of ;
(3) when the Securities of such series have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) terms, subject to bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar reorganization and other laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (regardless relating to or affecting the enforcement of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinionscreditors' rights and to general principles of equity, such counsel may rely upon opinions of other counsel (copies of which shall and will be delivered entitled to the Trusteebenefits of this Indenture;
(4) reasonably satisfactory to the TrusteeIndenture has been duly authorized, in which case the opinion shall state that counsel believes that counsel executed and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers of delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable in accordance with its Subsidiaries terms, subject to bankruptcy, insolvency, reorganization and certificates other laws of public officialsgeneral applicability relating to or affecting the enforcement of creditors' rights and to general principles of equity;
(5) the issuance of the Securities will not result in any default under this Indenture, or any other contract, indenture, loan agreement or other instrument to which the Issuer is a party or by which it or any of its property is bound; and
(6) no consent, approval, authorization, order, registration or qualification of or with any governmental agency or body having jurisdiction over the Issuer is required for the execution and delivery of the Securities of such series by the Issuer, except such as have been obtained (except that no opinion need be expressed as to state securities or Blue Sky laws). The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 (other than Securities the forms and terms of which shall have been established by supplemental indenture) if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors, trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own 's rights, duties or immunities under the SecuritiesSecurities of any such series, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver make available for delivery one or more Registered Global Securities that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of all of the Securities of specified in such series issued and not yet canceledIssuer Order, (ii) shall be registered in the name of the Depository for such Registered Global Security therefor or Securities or the nominee of such Depositoryits nominee, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s 's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation."
Appears in 1 contract
Sources: Indenture (Puget Sound Energy Inc)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to to, or upon the order of of, the Issuer (contained in the Issuer Order referred to below in this SectionSection 2.4) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate rate, if any, and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such proceduresprocedures and agreed to by the Trustee, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating the Securities of such Securities series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates rates, if any, and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and procedures, (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writingwriting and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution and/or Officer’s the Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, Indenture and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter from legal counsel addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities of such series have been established pursuant to a Board Resolution, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) when the Securities of such Securities when series have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities of such series will not contravene any provision of applicable law or the articles of incorporation or bylaws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its Subsidiaries that is material to the Issuer and its Subsidiaries, considered as one enterprise, or, to such counsel's knowledge after the inquiry indicated therein, any judgment, order or decree of any governmental agency or any court having jurisdiction over the Issuer or any Subsidiary of the Issuer, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In addition, if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, such Opinion of Counsel shall also state that all laws and requirements with respect to the form and execution by the Issuer of the supplemental indenture with respect to the series of Securities have been complied with, the Issuer has corporate power to execute and deliver any such supplemental indenture and has taken all necessary corporate action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation of the Issuer enforceable in accordance with its terms. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New Jersey and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that both such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent he such counsel deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series to be issued in the form of Global Securities and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s instructions Depositary's instructions, and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer Upon the execution and delivery of this Indenture, or from time to time thereafter, Securities, including Coupons appertaining thereto, if any, may deliver Securities of any series be executed by the Issuer and delivered to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4section, and the Trustee shall thereupon authenticate and deliver such Securities and Coupons appertaining thereto, if any, to or upon the order of the Issuer (contained in the Issuer Company Order referred to below in this Sectionsection) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer such Company Order, without any further action by the Issuer. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Company Order and proceduresor procedures authorized by such Company Order. If provided for in such procedures, such Issuer Company Order may authorize authentication and delivery of Securities pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer a Company Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Company Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer a Company Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer a Company Order, (c) the maturity date or dates, original issue date or dates, dates or interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer a Company Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Company Order may authorize authentication and delivery of Securities pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral or electronic instructions shall be promptly confirmed in writing, and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution Board Resolution, Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities and stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions an Opinion of CounselCounsel of the Issuer, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of CounselCounsel of the Issuer, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwrittena Periodic Offering, certain terms of the Securities have been established pursuant to a Board Resolution of the Issuer, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer a Company Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions provi- sions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andpur- chasers thereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under the Securities and the Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or to the best of counsel's knowledge any agreement or other instrument binding upon the Issuer that is material to the Issuer or, to the best of such counsel's knowledge but without any independent investigation, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and any of its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its Board of Directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that all or a portion of the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Company Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all or a portion of the Securities of such series issued and not yet canceledcanceled or exchanged to be represented by such Registered Global Securities, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered a nominee thereof or held a custodian therefor or pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “Unless "This Security is a Registered Global Security within the meaning of the Indenture hereinafter referred to and until it is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged in whole or in part for Securities in definitive registered forma Security registered, and no transfer of this Security in whole or in part may not be transferred except as a whole by registered in the Depository to the nominee name of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any Person other than such nominee to a successor Depository Depositary or a nominee of such successor Depositorythereof, except in the limited circumstances described in the Indenture.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation."
Appears in 1 contract
Sources: Subordinated Indenture (Freeport McMoran Copper & Gold Inc)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to provided with receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to TIA Section 6.1315) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request;
(4) an Officer’s Certificate to the effect that the terms and conditions of the Canadian Trust Indenture relating to the creation, assumption or incurring of Funded Obligations (as such is defined in the Canadian Trust Indenture) have been complied with; and
(45) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, this Indenture and the Securities will not contravene any provision of applicable law or the certificate and articles of incorporation or by-laws of the Issuer or the Canadian Trust Indenture or the Mortgage, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court in Canada having jurisdiction over the Issuer or any Significant Subsidiary, and no consent, approval or authorization of or registration, qualification, recording or filing with any governmental body or agency of Canada, the United States or the State of New York is required for the performance by the Issuer of its obligations under this Indenture and the Securities, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York, the federal law of the United States and Canada upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. The Trustee shall not be required to authenticate Securities denominated in a coin or currency other than that of the United States of America if the Trustee reasonably determines that such Securities impose duties or obligations on the Trustee which the Trustee is not able or reasonably willing to accept; provided that the Trustee, upon the request of the Issuer, will resign as Trustee with respect to Securities of any series as to which such a determination is made, prior to the issuance of such Securities, and will comply with the request of the Issuer to execute and deliver a supplemental indenture appointing a successor Trustee pursuant to Section 8.1 hereof. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” Each Depository Depositary for any Registered Global Security designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. 3.1 The Issuer may deliver Securities undertakes that the Permanent Global Security (duly executed on behalf of any series executed by the Issuer Issuer) will be available to be exchanged for interests in the Trustee for authentication together Temporary Global Security in accordance with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall Temporary Global Security.
3.2 If a Global Security is to be determined by or pursuant to such Issuer Order and procedures. If provided exchanged in accordance with its terms for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such definitive Securities, the Trustee shall be entitled Issuer undertakes that it will deliver to, or to receive (the order of, the Principal Paying Agent, as soon as reasonably practicable and in the case of subparagraphs (2), (3) and (4) below only at or any event not later than 15 days before the time of the first request of the Issuer relevant exchange is due to the Trustee to authenticate take place, definitive Securities of such series(with Coupons and a Talon for further Coupons attached) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding of €1,250,000,000 or such lesser amount as is the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series represented by the Global Security to be issued in exchange for the Global Security. Each definitive Security so delivered shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Officer’s Certificate referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option executed on behalf of the Issuer, either one or more Opinions of Counsel, or a letter addressed .
3.3 The Issuer authorises and instructs the Principal Paying Agent to authenticate the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Global Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the any definitive Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established delivered pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture and, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities when executed by the Issuer and authenticated by the Trustee sub-clause 3.2 in accordance with the provisions of this Indenture the Trust Deed.
3.4 The Issuer authorises and delivered instructs the Principal Paying Agent to cause interests in the Temporary Global Security to be exchanged for interests in the Permanent Global Security and duly paid interests in a Global Security to be exchanged for by the purchasers thereof and, subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable definitive Securities in accordance with their respective terms except as terms. Following the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and (ii) exchange of the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether such enforceability is considered last interest in a proceeding in equity or at law). In rendering Global Security, the Principal Paying Agent shall cause such opinions, such counsel may rely upon opinions of other counsel (copies of which shall Global Security to be cancelled and delivered to the Trustee) reasonably satisfactory Issuer or as it may direct.
3.5 The Principal Paying Agent shall cause all Securities delivered to and held by it under this Agreement to be maintained in safe keeping and shall ensure that interests in the Trustee, Temporary Global Security are only exchanged for interests in which case the opinion shall state that counsel believes that counsel and Permanent Global Security in accordance with the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has relied, to the extent he deems proper, upon certificates of officers terms of the Issuer Temporary Global Security and its Subsidiaries this Agreement and certificates that the definitive Securities are issued only in accordance with the terms of public officials. The Trustee shall have a Global Security, the right to decline to authenticate Trust Deed and deliver this Agreement.
3.6 So long as any of the Securities under this Section 2.4 if is outstanding the TrusteePrincipal Paying Agent shall, being advised by counsel, determines that such action may not lawfully be taken within seven days of any request by the Issuer or if the Trustee, certify to the Issuer or the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities number of definitive Securities held by it under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryAgreement.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Paying Agency Agreement
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to to, or upon the order of of, the Issuer (contained in the Issuer Order referred to below in this SectionSection 2.4) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate rate, if any, and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such proceduresprocedures and agreed to by the Trustee, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating the Securities of such Securities series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates rates, if any, and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and procedures, (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writingwriting and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution and/or Officer’s the Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, Indenture and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter from legal counsel addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities of such series have been established pursuant to a Board Resolution, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(cb) when the Securities of such Securities when series have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(c) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities of such series will not contravene any provision of applicable law or the articles of incorporation or bylaws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its Subsidiaries that is material to the Issuer and its Subsidiaries, considered as one enterprise, or, to such counsel's knowledge after the inquiry indicated therein, any judgment, order or decree of any governmental agency or any court having jurisdiction over the Issuer or any Subsidiary of the Issuer, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In addition, if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, such Opinion of Counsel shall also state that the Issuer has corporate power to execute and deliver any such supplemental indenture and has taken all necessary corporate action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation of the Issuer enforceable in accordance with its terms. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of Texas and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that both such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent he such counsel deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series to be issued in the form of Global Securities and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s instructions Depositary's instructions, and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be 18 delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter letters addressed to the Trustee permitting it to rely on one or more Opinions Options of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms except terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or, to the best of In rendering such opinions, such counsel may qualify any opinions as the to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or conveyance and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent he such counsel deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledto be represented by such Registered Global Security or Securities, (ii) shall be registered in the name of the Depository such Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless this certificate is presented by an authorized representative of a Depositary to the Issuer or its agent for registration of transfer, exchange or payment, and until it any certificate issued is exchanged registered in whole the name of the nominee of such Depositary or in part for Securities in definitive registered form, this Security may not be transferred except such other name as a whole requested by the Depository an authorized representative of such Depositary and any payment is made to the nominee of such Depositary, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the Depository or by a nominee of registered owner hereof, the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depositorynominee, has an interest herein.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation."
Appears in 1 contract
Sources: Indenture (Tenneco Packaging Inc)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Issuer (contained in the Issuer Order referred to below in this Section) or deliver pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such proceduresSections 2.1, such Issuer Order may authorize authentication 2.3 and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writingthis Section 2.4. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive provided with (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in conclusively relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, Order and (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2b) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities were established;
(3c) an Officer’s Certificate setting forth the form or forms and terms of the Securities Securities, stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At the option of the Issuer, either Either one or more Opinions of Counsel, or or, at the option of the Issuer, a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(ai) the form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in ;
(iii) if the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or an Officer’s Certificate in accordance with this Indenture anda supplemental indenture, such supplemental indenture, when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized executed by the Issuer and will have been established the Trustee in conformity accordance with the provisions of this Indenture; and, and subject to any exemptions, assumptions and qualifications specified in such Opinion of Counsel, will be a valid and binding obligation of the Issuer, enforceable in accordance with its terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally, (ii) rights of acceleration, if any, and (iii) the availability of equitable remedies may be limited by equitable principles of general applicability, and such counsel need express no opinion with regard to the enforceability of Section 6.6;
(civ) such Securities Securities, when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, and subject to any conditions exemptions, assumptions and qualifications specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally generally, (ii) rights of acceleration, if any, and (iiiii) the availability of equitable remedies may be limited by equitable principles of general applicability applicability, and such counsel need express no opinion with regard to the enforceability of Section 6.6; and
(regardless v) all conditions precedent to the issuance, execution, delivery, authorization and authentication of whether the Securities have been complied with. Any counsel may state that such enforceability is considered in a proceeding in equity or at law)opinions are limited to matters arising under the laws of the State of New York and the General Corporation Law of the State of Delaware. In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel it and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel it has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered formUNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryTHIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.” Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation. The Company initially appoints DTC to act as the Depositary for the Securities.
Appears in 1 contract
Sources: Indenture (PayPal Holdings, Inc.)
Authentication and Delivery of Securities. (a) The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto (including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (22.04(a)(ii), (32.04(a)(iii) and (42.04(a)(iv) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.16.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded superceded or revoked:
(1i) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series (including Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writing;
(2ii) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.03 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3iii) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 2.01 and 2.3 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4iv) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(aA) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bB) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(cC) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(D) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its consolidated subsidiaries that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any U.S. governmental body, agency or court having jurisdiction over the Issuer or any of its consolidated subsidiaries, and no consent, approval or authorization of any U.S. governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 2.03 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract
Sources: Senior Indenture (Morgan Stanley Capital Trust VIII)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities and Coupons, if any, to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2b), (3c) and (4d) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1a) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, ,
(ai) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, ,
(bii) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, ,
(ciii) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and and
(div) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2b) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3c) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4d) At at the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(ai) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(bii) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(ciii) such Securities and Coupons, if any, when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (ix) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ ' rights generally generally, (y) rights of acceleration, if any, and (iiz) the availability of equitable remedies may be limited by equitable principles of general applicability and such counsel need express no opinion with regard to the enforceability of Section 6.6 or of a judgment denominated in a currency other than Dollars. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Global Crossing LTD)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to to, or upon the order of of, the Issuer (contained in the Issuer Order referred to below in this SectionSection 2.4) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate rate, if any, and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such proceduresprocedures and agreed to by the Trustee, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating the Securities of such Securities series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates rates, if any, and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and procedures, (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral instructions shall be promptly confirmed in writingwriting and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution and/or Officer’s the Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities of such series were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, Indenture and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the Issuer, either one or more Opinions an Opinion of Counsel, or a letter from legal counsel addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities of such series have been established pursuant to a Board Resolution, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) when the Securities of such Securities when series have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities of such series will not contravene any provision of applicable law or the articles of incorporation or bylaws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its Subsidiaries that is material to the Issuer and its Subsidiaries, considered as one enterprise, or, to such counsel's knowledge after the inquiry indicated therein, any judgment, order or decree of any governmental agency or any court having jurisdiction over the Issuer or any Subsidiary of the Issuer, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities. In addition to the requirements of Section 8.4, if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, such Opinion of Counsel shall also state that all laws and requirements with respect to the form and execution by the Issuer of the supplemental indenture with respect to the series of Securities have been complied with, the Issuer has corporate power to execute and deliver any such supplemental indenture and has taken all necessary corporate action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation of the Issuer enforceable in accordance with its terms. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that both such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent he such counsel deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities of any series under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series to be issued in the form of Global Securities and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s instructions Depositary's instructions, and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer Upon the execution and delivery of this Indenture, or from time to time thereafter, Securities, including Coupons appertaining thereto, if any, may deliver Securities of any series be executed by the Issuer and delivered to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4section, and the Trustee shall thereupon authenticate and deliver such Securities and Coupons appertaining thereto, if any, to or upon the order of the Issuer (contained in the Issuer Company Order referred to below in this Sectionsection) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer such Company Order, without any further action by the Issuer. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Company Order and proceduresor procedures authorized by such Company Order. If provided for in such procedures, such Issuer Company Order may authorize authentication and delivery of Securities pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer a Company Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Company Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer a Company Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer a Company Order, (c) the maturity date or dates, original issue date or dates, dates or interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer a Company Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Company Order may authorize authentication and delivery of Securities pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral or electronic instructions shall be promptly confirmed in writing, and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution Board Resolution, Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities and stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions an Opinion of CounselCounsel of the Issuer, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of CounselCounsel of the Issuer, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwrittena Periodic Offering, certain terms of the Securities have been established pursuant to a Board Resolution of the issuer, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer a Company Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under the Securities and the Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or to the best of counsel's knowledge any agreement or other instrument binding upon the Issuer that is material to the Issuer or, to the best of such counsel's knowledge but without any independent investigation, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and any of its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its Board of Directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that all or a portion of the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Company Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all or a portion of the Securities of such series issued and not yet canceledcanceled or exchanged to be represented by such Registered Global Securities, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered a nominee thereof or held a custodian therefor or pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “Unless "This Security is a Registered Global Security within the meaning of the Indenture hereinafter referred to and until it is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged in whole or in part for Securities in definitive registered forma Security registered, and no transfer of this Security in whole or in part may not be transferred except as a whole by registered in the Depository to the nominee name of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any Person other than such nominee to a successor Depository Depositary or a nominee of such successor Depositorythereof, except in the limited circumstances described in the Indenture.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation."
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities and Coupons, if any, to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution Board Resolution, Officer's Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities and Coupons, if any, when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’ ' rights generally generally, (ii) rights of acceleration, if any, and (iiiii) the availability of equitable remedies may be limited by equitable principles of general applicability and such counsel need express no opinion with regard to the enforceability of Section 6.6 or of a judgment denominated in a currency other than Dollars. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository Depositary to the nominee of the Depository Depositary or by a nominee of the Depository Depositary to the Depository Depositary or another nominee of the Depository Depositary or by the Depository Depositary or any such nominee to a successor Depository Depositary or a nominee of such successor DepositoryDepositary.” " Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Authentication and Delivery of Securities. The Issuer Upon the execution and delivery of this Indenture, or from time to time thereafter, Securities, including Coupons appertaining thereto, if any, may deliver Securities of any series be executed by the Issuer and delivered to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4section, and the Trustee shall thereupon authenticate and deliver such Securities and Coupons appertaining thereto, if any, to or upon the order of the Issuer (contained in the Issuer Company Order referred to below in this Sectionsection) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer such Company Order, without any further action by the Issuer. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Company Order and proceduresor procedures authorized by such Company Order. If provided for in such procedures, such Issuer Company Order may authorize authentication and delivery of Securities pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) 3 and (4) 4 below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer a Company Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Company Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer a Company Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer a Company Order, (c) the maturity date or dates, original issue date or dates, dates or interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer a Company Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Company Order may authorize authentication and delivery of Securities pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, oral or electronic instructions shall be promptly confirmed in writing, and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution Board Resolution, Officers' Certificate and/or Officer’s Certificate executed supplemental indenture referred to in Section Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s Officers' Certificate setting forth the form or forms and terms of the Securities and stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions an Opinion of CounselCounsel of the Issuer, or a letter addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of CounselCounsel of the Issuer, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwrittena Periodic Offering, certain terms of the Securities have been established pursuant to a Board Resolution of the issuer, an Authorizing Resolution Officers' Certificate or an Officer’s Certificate a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer a Company Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions provi- sions of this Indenture; and;
(c) such when the Securities when and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andpur- chasers thereof, subject to any conditions specified in such Opinion of Counsel, they will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, Indenture and will be valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms terms, and will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under the Securities and the Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or to the best of counsel's knowledge any agreement or other instrument binding upon the Issuer that is material to the Issuer or, to the best of such counsel's knowledge but without any independent investigation, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer and no consent, approval or authorization of any governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any. In rendering such opinions, such counsel may qualify any opinions as to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and any of its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its Board of Directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that all or a portion of the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section 2.4 and the Issuer Company Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all or a portion of the Securities of such series issued and not yet canceledcanceled or exchanged to be represented by such Registered Global Securities, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered a nominee thereof or held a custodian therefor or pursuant to such Depository’s Depositary's instructions and (iv) shall bear a legend substantially to the following effect: “Unless "This Security is a Registered Global Security within the meaning of the Indenture hereinafter referred to and until it is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged in whole or in part for Securities in definitive registered forma Security registered, and no transfer of this Security in whole or in part may not be transferred except as a whole by registered in the Depository to the nominee name of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any Person other than such nominee to a successor Depository Depositary or a nominee of such successor Depositorythereof, except in the limited circumstances described in the Indenture.” Each Depository designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation."
Appears in 1 contract
Sources: Senior Indenture (Freeport McMoran Copper & Gold Inc)
Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities and Coupons, if any, to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic written instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic written instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Authorizing Resolution and/or Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized by the Issuer and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture; and
(c) such Securities and Coupons, if any, when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof andthereof, and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms except as the enforceability thereof may be limited by applicable (i) bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting creditors’ rights generally, (ii) rights of acceleration, if any, and (iii) general principles of equity (regardless of whether enforceability in considered in a proceeding in equity or law) and such counsel need express no opinion with regard to the enforceability of Section 6.6 or of a judgment denominated in a currency other than Dollars. In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that counsel it and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel it has relied, to the extent he it deems proper, upon certificates of officers of the Issuer and its Subsidiaries subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such DepositoryDepositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless This Security is a Registered Global Security within the meaning of the Indenture hereinafter referred to and until it is exchanged registered in whole the name of a Depositary or in part for Securities in definitive registered form, this a nominee thereof. This Security may not be transferred except as a whole by to, or registered or exchanged for Securities registered in the Depository to name of, any Person other than the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository Depositary or a nominee thereof, and no such transfer may be registered, except in the limited circumstances described in the Indenture. Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, this Security shall be a Registered Global Security that is subject to the foregoing, except in such successor Depositorylimited circumstances.” Each Depository Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Appears in 1 contract
Sources: Indenture (Wynn Resorts LTD)
Authentication and Delivery of Securities. The Issuer TLGI may deliver Securities of any series executed by the Issuer TLGI to the Trustee for authentication together with the applicable documents referred to below in this Section 2.42.04, and the Trustee shall thereupon authenticate and deliver such Securities to to, or upon the order of the Issuer of, TLGI (contained in the Issuer TLGI Order referred to below in this SectionSection 2.04) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate rate, if any, and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer TLGI or its duly authorized agent or agentsagent, which instructions, if oral, instructions shall be promptly confirmed in writing. In authenticating the Securities of such Securities series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the Issuer TLGI to the Trustee to authenticate Securities of such series) and (subject to Section 6.17.01) shall be fully protected in relying upon, the following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities of such series are not to be delivered to the IssuerTLGI, PROVIDED, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer TLGI to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates rates, if any, and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures and procedures, (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral telecommunication or electronic instructions from the Issuer TLGI or its duly authorized agent or agents, which instructionsand (e) after the original issuance of the first Security of such series to be issued, if oral, shall any separate request by TLGI that the Trustee authenticate Securities of such series for original issuance will be promptly confirmed deemed to be a certification by TLGI that it is in writingcompliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
(2) any Authorizing Resolution and/or the Board Resolutions, Officer’s 's Certificate or executed supplemental indenture referred to in Section 2.1 Sections 2.01 and 2.3 2.02 by or pursuant to which the form or forms and terms of the Securities of such series were established;
(3) an Officer’s 's Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 2.01 and 2.3 2.02 and comply with this Indenture, Indenture and covering such other matters as the Trustee may reasonably request; and
(4) At at the option of the IssuerTLGI, either one or more Opinions an Opinion of Counsel, or a letter from legal counsel addressed to the Trustee permitting it to rely on one or more Opinions an Opinion of Counsel, substantially to the effect that:
(aA) the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture;
(bB) in the case of an underwritten offering, the terms Securities of the Securities such series have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities of such series have been established pursuant to an Authorizing Resolution or a Board Resolution, an Officer’s 's Certificate or a supplemental indenture in accordance with this Indenture andIndenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer TLGI and will have been established in conformity with the provisions of this Indenture; and;
(cC) when the Securities of such Securities when series have been executed by the Issuer ▇▇▇▇ and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for against payment therefor by the purchasers thereof andthereof, subject to any conditions specified they will be valid and legally binding obligations of TLGI, enforceable in such Opinion of Counselaccordance with their respective terms, will have been duly issued under this Indenture, and will be entitled to the benefits of this Indenture; and
(D) the execution and delivery by TLGI of, and the performance by TLGI of its obligations under, the Securities of such series will not contravene any provision of applicable law or the articles of incorporation or by-laws of TLGI or any agreement or other instrument binding upon TLGI or any of its Subsidiaries that is material to TLGI and its Subsidiaries, considered as one enterprise, or, to such counsel's knowledge after the inquiry indicated therein, any judgment, order or decree of any governmental agency or any court having jurisdiction over TLGI or any Subsidiary, and no consent, approval or authorization of any governmental body or agency is required for the performance by TLGI of its obligations under the Securities, except such as are specified and have been obtained and such as may be valid and binding obligations required by the securities or blue sky laws of the Issuervarious states in connection with the offer and sale of the Securities. In rendering such opinions, enforceable in accordance with their respective terms except such counsel may qualify any opinions as the to enforceability thereof by stating that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or moratorium and other similar laws affecting creditors’ the rights generally and (ii) the availability remedies of equitable remedies may be limited by equitable creditors and is subject to general principles of general applicability equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering such opinions, such Such counsel may rely rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee) ), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that both such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent he such counsel deems proper, upon certificates of officers of the Issuer TLGI and its Subsidiaries and certificates of public officials. The Trustee shall have the right to decline to authenticate and deliver delivery any Securities of any series under this Section 2.4 2.04 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer TLGI or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee’s 's own rights, duties or immunities under the Securities, this Indenture or otherwise. If the Issuer TLGI shall establish pursuant to Section 2.3 2.01 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer TLGI shall execute and the Trustee shall, in accordance with this Section 2.04 and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series to be issued in the form of Global Securities and not yet canceledcancelled, (ii) shall be registered in the name of the Depository Depositary for such Registered Global Security or Securities or the nominee of such DepositoryDepositary, (iii) shall be delivered by the Trustee to such Depository Depositary or delivered or held pursuant to such Depository’s instructions Depositary's instructions, and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor DepositoryTHIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.” " Each Depository Depositary designated pursuant to Section 2.3 2.01 must, at the time of its designation and at all times while it serves as DepositoryDepositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Appears in 1 contract