Commercial Law: US Code CHAPTER 2A - SECURITIES AND TRUST INDENTURES SUBCHAPTER III - TRUST INDENTURES Section 77aaa. Short Title Section 77bbb. Necessity For Regulation Section 77ccc. Definitions Section 77ddd. Exempted Securities And Transactions Section 77eee. Securities Required To Be Registered Under Securities Act Section 77fff. Securities Not Registered Under Securities Act Section 77ggg. Qualification Of Indentures Covering Securities Not Required To Be Registered Section 77hhh. Integration Of Procedure With Securities Act And Other Acts Section 77iii. Effective Time Of Qualification Section 77jjj. Eligibility And Disqualification Of Trustee Section 77kkk. Preferential Collection Of Claims Against Obligor Section 77lll. Bondholders' Lists Section 77mmm. Reports By Indenture Trustee Section 77nnn. Reports By Obligor; Evidence Of Compliance With Indenture Provisions Section 77ooo. Duties And Responsibility Of The Trustee Section 77ppp. Directions And Waivers By Bondholders; Prohibition Of Impairment Of Holder'S Right To Payment; Record Date Section 77qqq. Special Powers Of Trustee; Duties Of Paying Agents Section 77rrr. Effect Of Prescribed Indenture Provisions Section 77sss. Rules, Regulations, And Orders Section 77ttt. Hearings By Commission Section 77uuu. Special Powers Of The Commission Section 77vvv. Judicial Review Section 77www. Liability For Misleading Statements Section 77xxx. Unlawful Representations Section 77yyy. Penalties Section 77zzz. Effect On Existing Law Section 77aaaa. Contrary Stipulations Void Section 77bbbb. Separability Subchapter Notes   Section 77aaa. Short title This subchapter may be cited as the ''Trust Indenture Act of 1939.'' Section 77bbb. Necessity for regulation (a) Practices adversely affecting public Upon the basis of facts disclosed by the reports of the Securities and Exchange Commission made to the Congress pursuant to section 78jj of this title and otherwise disclosed and ascertained, it is hereby declared that the national public interest and the interest of investors in notes, bonds, debentures, evidences of indebtedness, and certificates of interest or participation therein, which are offered to the public, are adversely affected - (1) when the obligor fails to provide a trustee to protect and enforce the rights and to represent the interests of such investors, notwithstanding the fact that (A) individual action by such investors for the purpose of protecting and enforcing their rights is rendered impracticable by reason of the disproportionate expense of taking such action, and (B) concerted action by such investors in their common interest through representatives of their own selection is impeded by reason of the wide dispersion of such investors through many States, and by reason of the fact that information as to the names and addresses of such investors generally is not available to such investors; (2) when the trustee does not have adequate rights and powers, or adequate duties and responsibilities, in connection with matters relating to the protection and enforcement of the rights of such investors; when, notwithstanding the obstacles to concerted action by such investors, and the general and reasonable assumption by such investors that the trustee is under an affirmative duty to take action for the protection and enforcement of their rights, trust indentures (A) generally provide that the trustee shall be under no duty to take any such action, even in the event of default, unless it receives notice of default, demand for action, and indemnity, from the holders of substantial percentages of the securities outstanding thereunder, and (B) generally relieve the trustee from liability even for its own negligent action or failure to act; (3) when the trustee does not have resources commensurate with its responsibilities, or has any relationship to or connection with the obligor or any underwriter of any securities of the obligor, or holds, beneficially or otherwise, any interest in the obligor or any such underwriter, which relationship, connection, or interest involves a material conflict with the interests of such investors; (4) when the obligor is not obligated to furnish to the trustee under the indenture and to such investors adequate current information as to its financial condition, and as to the performance of its obligations with respect to the securities outstanding under such indenture; or when the communication of such information to such investors is impeded by the fact that information as to the names and addresses of such investors generally is not available to the trustee and to such investors; (5) when the indenture contains provisions which are misleading or deceptive, or when full and fair disclosure is not made to prospective investors of the effect of important indenture provisions; or (6) when, by reason of the fact that trust indentures are commonly prepared by the obligor or underwriter in advance of the public offering of the securities to be issued thereunder, such investors are unable to participate in the preparation thereof, and, by reason of their lack of understanding of the situation, such investors would in any event be unable to procure the correction of the defects enumerated in this subsection.   (b) Declaration of policy Practices of the character above enumerated have existed to such an extent that, unless regulated, the public offering of notes, bonds, debentures, evidences of indebtedness, and certificates of interest or participation therein, by the use of means and instruments of transportation and communication in interstate commerce and of the mails, is injurious to the capital markets, to investors, and to the general public; and it is hereby declared to be the policy of this subchapter, in accordance with which policy all the provisions of this subchapter shall be interpreted, to meet the problems and eliminate the practices, enumerated in this section, connected with such public offerings.   Section 77ccc. Definitions When used in this subchapter, unless the context otherwise requires - (1) Any term defined in section 2 of the Securities Act of 1933 (15 U.S.C. 77b), and not otherwise defined in this section shall have the meaning assigned to such term in such section 2 (15 U.S.C. 77b). (2) The terms ''sale'', ''sell'', ''offer to sell'', ''offer for sale'', and ''offer'' shall include all transactions included in such terms as provided in paragraph (3) of section 2(a) of the Securities Act of 1933 (15 U.S.C. 77b(a)), except that an offer or sale of a certificate of interest or participation shall be deemed an offer or sale of the security or securities in which such certificate evidences an interest or participation if and only if such certificate gives the holder thereof the right to convert the same into such security or securities.   (3) The term ''prospectus'' shall have the meaning assigned to such term in paragraph (10) of section 2(a) of the Securities Act of 1933 (15 U.S.C. 77b(a)), except that in the case of securities which are not registered under the Securities Act of 1933 (15 U.S.C. 77a et seq.), such term shall not include any communication (A) if it is proved that prior to or at the same time with such communication a written statement if any required by section 77fff of this title was sent or given to the persons to whom the communication was made, or (B) if such communication states from whom such statement may be obtained (if such statement is required by rules or regulations under paragraphs (1) or (2) of subsection (b) of section 77fff of this title) and, in addition, does no more than identify the security, state the price thereof, state by whom orders will be executed and contain such other information as the commission, by rules or regulations deemed necessary or appropriate in the public interest or for the protection of investors, and subject to such terms and conditions as may be prescribed therein, may permit. (4) The term ''underwriter'' means any person who has purchased from an issuer with a view to, or offers or sells for an issuer in connection with, the distribution of any security, or participates or has a direct or indirect participation in any such undertaking, or participates or has a participation in the direct or indirect underwriting of any such undertaking; but such term shall not include a person whose interest is limited to a commission from an underwriter or dealer not in excess of the usual and customary distributors' or sellers' commission. (5) The term ''director'' means any director of a corporation, or any individual performing similar functions with respect to any organization whether incorporated or unincorporated. (6) The term ''executive officer'' means the president, every vice president, every trust officer, the cashier, the secretary, and the treasurer of a corporation, and any individual customarily performing similar functions with respect to any organization whether incorporated or unincorporated, but shall not include the chairman of the board of directors. (7) The term ''indenture'' means any mortgage, deed of trust, trust or other indenture, or similar instrument or agreement (including any supplement or amendment to any of the foregoing), under which securities are outstanding or are to be issued, whether or not any property, real or personal, is, or is to be, pledged, mortgaged, assigned, or conveyed thereunder. (8) The term ''application'' or ''application for qualification'' means the application provided for in section 77eee of this title or section 77ggg of this title, and includes any amendment thereto and any report, document, or memorandum accompanying such application or incorporated therein by reference. (9) The term ''indenture to be qualified'' means (A) the indenture under which there has been or is to be issued a security in respect of which a particular registration statement has been filed, or (B) the indenture in respect of which a particular application has been filed. (10) The term ''indenture trustee'' means each trustee under the indenture to be qualified, and each successor trustee. (11) The term ''indenture security'' means any security issued or issuable under the indenture to be qualified. (12) The term ''obligor'', when used with respect to any such ndenture security, means every person (including a guarantor) who is liable thereon, and, if such security is a certificate of interest or participation, such term means also every person (including a guarantor) who is liable upon the security or securities in which such certificate evidences an interest or participation; but such term shall not include the trustee under an indenture under which certificates of interest or participation, equipment trust certificates, or like securities are outstanding. (13) The term ''paying agent'', when used with respect to any such indenture security, means any person authorized by an obligor thereon (A) to pay the principal of or interest on such security on behalf of such obligor, or (B) if such security is a certificate of interest or participation, equipment trust certificate, or like security, to make such payment on behalf of the trustee. (14) The term ''State'' means any State of the United States. (15) The term ''Commission'' means the Securities and Exchange Commission. (16) The term ''voting security'' means any security presently entitling the owner or holder thereof to vote in the direction or management of the affairs of a person, or any security issued under or pursuant to any trust, agreement, or arrangement whereby a trustee or trustees or agent or agents for the owner or holder of such security are presently entitled to vote in the direction or management of the affairs of a person; and a specified percentage of the voting securities of a person means such amount of the outstanding voting securities of such person as entitles the holder or holders thereof to cast such specified percentage of the aggregate votes which the holders of all the outstanding voting securities of such person are entitled to cast in the direction or management of the affairs of such person. (17) The terms ''Securities Act of 1933 (15 U.S.C. 77a et seq.),'' ''Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.),'' and ''Public Utility Holding Company Act of 1935 (15 U.S.C. 79 et seq.)'' shall be deemed to refer, respectively, to such Acts, as amended, whether amended prior to or after the enactment of this subchapter. (18) The term ''Bankruptcy Act'' means the Bankruptcy Act or title 11. Section 77eee. Securities required to be registered under Securities Act (a) Information required Subject to the provisions of section 77ddd of this title, a registration statement relating to a security shall include the following information and documents, as though such inclusion were required by the provisions of section 7 of the Securities Act of 1933 (15 U.S.C. 77g) - (1) such information and documents as the Commission may by rules and regulations prescribe in order to enable the Commission to determine whether any person designated to act as trustee under the indenture under which such security has been or is to be issued is eligible to act as such under subsection (a) of section 77jjj of this title; and (2) an analysis of any provisions of such indenture with respect to (A) the definition of what shall constitute a default under such indenture, and the withholding of notice to the indenture security holders of any such default, (B) the authentication and delivery of the indenture securities and the application of the proceeds thereof, (C) the release or the release and substitution of any property subject to the lien of the indenture, (D) the satisfaction and discharge of the indenture, and (E) the evidence required to be furnished by the obligor upon the indenture securities to the trustee as to compliance with the conditions and covenants provided for in such indenture. The information and documents required by paragraph (1) of this subsection with respect to the person designated to act as indenture trustee shall be contained in a separate part of such registration statement, which part shall be signed by such person. Such part of the registration statement shall be deemed to be a document filed pursuant to this subchapter, and the provisions of sections 11, 12, 17, and 24 of the Securities Act of 1933 (15 U.S.C. 77k, 77l, 77q, 77x) shall not apply to statements therein or omissions therefrom. (b) Refusal of registration statement (1) Except as may be permitted by paragraph (2) of this subsection, the Commission shall issue an order prior to the effective date of registration refusing to permit such a registration statement to become effective, if it finds that - (A) the security to which such registration statement relates has not been or is not to be issued under an indenture; o (B) any person designated as trustee under such indenture is not eligible to act as such under subsection (a) of section 77jjj of this title; but no such order shall be issued except after notice and opportunity for hearing within the periods and in the manner required with respect to refusal orders pursuant to section 8(b) of the Securities Act of 1933 (15 U.S.C. 77h(b)). If and when the Commission deems that the objections on which such order was based have been met, the Commission shall enter an order rescinding such refusal order, and the registration shall become effective at the time provided in section 8(a) of the Securities Act of 1933 (15 U.S.C. 77h(a)), or upon the date of such rescission, whichever shall be the later. (2) In the case of securities registered under the Securities Act of 1933 (15 U.S.C. 77a et seq.), which securities are eligible to be issued, offered, or sold on a delayed basis by or on behalf of the registrant, the Commission shall not be required to issue an order pursuant to paragraph (1) of subsection (b) of this section for failure to designate a trustee eligible to act under subsection (a) of section 77jjj of this title if, in accordance with such rules and regulations as may be prescribed by the Commission, the issuer of such securities files an application for the purpose of determining such trustee's eligibility under subsection (a) of section 77jjj of this title. The Commission shall issue an order prior to the effective date of such application refusing to permit the application to become effective, if it finds that any person designated as trustee under such indenture is not eligible to act as such under subsection (a) of section 77jjj of this title, but no order shall be issued except after notice and opportunity for hearing within the periods and in the manner required with respect to refusal orders pursuant to section 8(b) of the Securities Act of 1933 (15 U.S.C. 77h(b)) If after notice and opportunity for hearing the Commission issues an order under this provision, the obligor shall within 5 calendar days appoint a trustee meeting the requirements of subsection (a) of section 77jjj of this title. No such appointment shall be effective and such refusal order shall not be rescinded by the Commission until a person eligible to act as trustee under subsection (a) of section 77jjj of this title has been appointed. If no order is issued, an application filed pursuant to this paragraph shall be effective the tenth day after filing thereof or such earlier date as the Commission may determine, having due regard to the adequacy of information provided therein, the public interest, and the protection of investors. (c) Information required in prospectus A prospectus relating to any such security shall include to the extent the Commission may prescribe by rules and regulations as necessary and appropriate in the public interest or for the protection of investors, as though such inclusion were required by section 10 of the Securities Act of 1933 (15 U.S.C. 77j), a written statement containing the analysis set forth in the registration statement, of any indenture provisions with respect to the matters specified in paragraph (2) of subsection (a) of this section, together with a supplementary analysis, prepared by the Commission, of such provisions and of the effect thereof, if, in the opinion of the Commission, the inclusion of such supplementary analysis is necessary or appropriate in the public interest or for the protection of investors, and the Commission so declares by order after notice and, if demanded by the issuer, opportunity for hearing thereon. Such order shall be entered prior to the effective date of registration, except that if opportunity for hearing thereon is demanded by the issuer such order shall be entered within a reasonable time after such opportunity for hearing. (d) Applicability of other statutory provisions The provisions of sections 11, 12, 17, and 24 of the Securities Act of 1933 (15 U.S.C. 77k, 77l, 77q, 77x), and the provisions of sections 77www and 77yyy of this title, shall not apply to statements in or omissions from any analysis required under the provisions of this section or section 77fff or 77ggg of this title.   Section 77fff. Securities not registered under Securities Act (a) Prohibitions affecting unregistered securities not issued under indenture In the case of any security which is not registered under the Securities Act of 1933 (15 U.S.C. 77a et seq.) and to which this subsection is applicable notwithstanding the provisions of section 77ddd of this title, unless such security has been or is to be issued under an indenture and an application for qualification is effective as to such indenture, it shall be unlawful for any person, directly or indirectly - (1) to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to sell such security through the use or medium of any prospectus or otherwise; or (2) to carry or cause to be carried through the mails or interstate commerce, by any means or instruments of transportation, any such security for the purpose of sale or for delivery after sale. (b) Prohibitions affecting unregistered securities issued under indenture In the case of any security which is not registered under the Securities Act of 1933 (15 U.S.C. 77a et seq.), but which has been or is to be issued under an indenture as to which an application for qualification is effective, it shall be unlawful for any person, directly or indirectly - (1) to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to carry or transmit any prospectus relating to any such security, unless such prospectus, to the extent the Commission may prescribe by rules and regulations as necessary and appropriate in the public interest or for the protection of investors, includes or is accompanied by a written statement that contains the information specified in subsection (c) of section 77eee of this title; or (2) to carry or to cause to be carried through the mails or in interstate commerce any such security for the purpose of sale or for delivery after sale, unless, to the extent the Commission may prescribe by rules and regulations as necessary or appropriate in the public interest or for the protection of investors, accompanied or preceded by a written statement that contains the information specified in subsection (c) of section 77eee of this title. (c) Necessity of issuance under indenture; application for qualification It shall be unlawful for any person, directly or indirectly, to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to offer to sell through the use or medium of any prospectus or otherwise any security which is not registered under the Securities Act of 1933 (15 U.S.C. 77a et seq.) and to which this subsection is applicable notwithstanding the provisions of section 77ddd of this title, unless such security has been or is to be issued under an indenture and an application for qualification has been filed as to such indenture, or while the application is the subject of a refusal order or stop order or (prior to qualification) any public proceeding or examination under section 77ggg(c) of this title.

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