Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notes: (a) the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the Notes; (b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur; (c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur; (d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto; (e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act); (f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and (g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Sources: Indenture (Fti Consulting Inc), Indenture (Fti Consulting Inc)
Conditions to Defeasance. In order to (a) The Issuer may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(ai) the Company must Issuer irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or an entity designated or appointed (as trust funds agent) by it for this purpose) cash in trust U.S. Dollars or U.S. Government Obligations or a combination thereof sufficient (as determined by the Issuer in good faith), for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provideprincipal, not later than the due date of any payment, money in an amount or premium (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, ) and interest on such the Notes on the Stated Maturity thereof to redemption or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofmaturity, as the case may be, in accordance with the terms of this Indenture and the Notes;
(bii) the Issuer delivers to the Trustee an Officer’s Certificate stating that the deposit was not made with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or any Guarantors or others;
(iii) the deposit does not constitute a default under any other material agreement or contract relating to Indebtedness binding on the Issuer (other than a default resulting from borrowing funds to be applied to make the deposit required to effect such legal defeasance or covenant defeasance and any similar and simultaneous deposit relating to such other Indebtedness and, in the case of Legal Defeasanceeach case, the Company granting of Liens in connection therewith);
(iv) the Issuer shall have delivered to the Trustee an Opinion of Counsel satisfactory Counsel, subject to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) customary assumptions and exclusions to the effect that, and based thereon such opinion shall confirm that, that the Holders beneficial owners of the Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the such deposit and Legal Defeasance to be effected with respect to such Notes defeasance and will be subject to United States U.S. federal income tax on the same amount, amount and in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were defeasance had not to occur;
occurred (c) and, in the case of Covenant Defeasancethe legal defeasance option only, such Opinion of Counsel must be based on a ruling received from, or published by, the Company shall have delivered Internal Revenue Service or a change in applicable U.S. federal income tax law); and
(v) the Issuer delivers to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel in form (which Opinion of Counsel may be subject to customary assumptions and substance reasonably acceptable to the Trusteeexclusions), each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article 8 have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (bSection 8.02(a)(iv) of this Section 9.02 with respect to a Legal Defeasance above need not to be delivered if all Notes not previously theretofore delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become are due and payable within one year at Stated Maturity or are to be called for redemption (y) have been or will become due and payable within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the CompanyIssuer. In addition, the Issuer will deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel (which may be subject to customary assumptions and exclusions) each stating that all conditions precedent under this Indenture relating to the legal defeasance or covenant defeasance have been complied with.
(b) Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article 3.
Appears in 1 contract
Sources: Indenture (At Home Group Inc.)
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notes:
(a) the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of benefit of, the Holders of such the Notes: (1) money in cash in U.S. Dollars in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants in the case of U.S. Government Obligations (or, if two or more nationally recognized firms of independent public accountants decline to issue such opinion after the Company has made reasonable efforts to obtain such an opinion, in the opinion of the Company’s chief financial officer) expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such the Notes on the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect theretothereto (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Debt) and the granting of any Lien to secure such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such the Trust Indenture Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundbound (other than a default or event of default under any such other instrument resulting from borrowing funds to be applied to make the deposit under this Indenture in connection with the legal defeasance or covenant defeasance (and any similar concurrent deposit relating to other Debt) and the granting of Liens in connection therewith); and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding a series of Notes:
(a1) the Company Issuers must irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds Collateral Agent, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such that series of Notes: (1) money , cash in an amountU.S. dollars, Government Securities, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestmentsuch amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and amount of, premium, if any, and interest due on such that series of Notes on the Stated Maturity thereof stated maturity date or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofdate, as the case may be, in accordance with the terms of this Indenture such principal amount, premium, if any, or interest on such Notes, and the NotesIssuers must specify whether such Notes are being defeased to maturity or to a particular redemption date;
(b2) in the case of Legal Defeasance, the Company Issuers shall have delivered to the Trustee and the Collateral Agent an Opinion of Counsel satisfactory reasonably acceptable to the Trustee stating that and the Collateral Agent confirming that, subject to customary assumptions and exclusions,
(1A) the Company has Issuers have received from, or there has been published by, the United States Internal Revenue Service a ruling or ruling, or
(2B) since the date issuance of this Indenturethe Notes of that series, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the Holders of the that series of Notes will shall not recognize income, gain or loss for United States U.S. federal income tax purposes purposes, as applicable, as a result of the deposit and such Legal Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were had not to occuroccurred;
(c3) in the case of Covenant Defeasance, the Company Issuers shall have delivered to the Trustee and the Collateral Agent an Opinion of Counsel in form reasonably acceptable to the effect that Trustee and the Collateral Agent confirming that, subject to customary assumptions and exclusions, the Holders of such outstanding that series of Notes will shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Covenant Defeasance to be effected with respect to such Notes and will shall be subject to United States federal income such tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were had not to occuroccurred;
(d4) no Default or Event of Default with respect to that series of Notes (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to such other Indebtedness, and in each case, the outstanding Notes granting of Liens in connection therewith) shall have occurred and be continuing at on the time date of such deposit after giving effect theretodeposit;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under the Senior Credit Facilities or any other material agreement or material instrument governing Indebtedness (other than this Indenture) to which which, the Company Issuers or any Guarantor is a party or by which the Company Issuers or any Guarantor is bound; bound (other than that resulting from any borrowing of funds to be applied to make the deposit required to effect such Legal Defeasance or Covenant Defeasance and any similar and simultaneous deposit relating to other Indebtedness, and, in each case, the granting of Liens in connection therewith);
(g6) the Company Issuers shall have delivered to the Trustee and the Collateral Agent an Officers’ Officer’s Certificate stating that the deposit was not made by the Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuers or any Guarantor or others; and
(7) the Issuers shall have delivered to the Trustee and the Collateral Agent an Officer’s Certificate and an Opinion of Counsel in form (which Opinion of Counsel may be subject to customary assumptions and substance reasonably acceptable to the Trustee, exclusions) each stating that all conditions precedent with respect provided for or relating to such the Legal Defeasance or the Covenant Defeasance Defeasance, as the case may be, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Sources: Indenture (Chrysler Group LLC)
Conditions to Defeasance. In order to The Company may exercise either its Legal Defeasance option or its Covenant Defeasance with respect to the outstanding Notesoption only if:
(a) the Company must (i) irrevocably have deposited or caused to be deposited deposits with the Trustee as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money in an amountHolders, or (2) U.S. Legal Tender, U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount Obligations or (3) a combination thereof, in each case such amounts as will be sufficient without reinvestmentreinvestment to pay the principal of, in premium, if any, and interest (including Additional Amounts) on the opinion Notes on the stated date for payment thereof or on the applicable Redemption Date, as the case may be, and (ii) delivers to the Trustee an Opinion of Counsel or a certificate of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to effect that the Trustee, to pay and discharge, and which shall be applied amount deposited by the Trustee Company is sufficient to pay and discharge, the entire indebtedness in respect of provide payment for the principal of and of, premium, if any, and interest (including Additional Amounts) on such the Notes on the Stated Maturity stated date for payment thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the applicable Redemption Date thereofDate, as the case may be, in accordance with the terms of this Indenture and the Notes;
(b) in the case of Legal Defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel satisfactory from counsel in the United States reasonably acceptable to the Trustee stating that and independent of the Company to the effect that:
(1i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(2ii) since the date of this IndentureIssue Date, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm state that, the Holders of the Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Legal Defeasance to be effected with respect to such Notes and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were had not to occuroccurred;
(c) in the case of Covenant Defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee to the effect that the Holders of such outstanding Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Covenant Defeasance to be effected with respect to such Notes and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were had not to occuroccurred;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing on the date of the deposit pursuant to paragraph (a) above (except any Default or Event of Default resulting from the failure to comply with Section 3.8 as a result of the borrowing of the funds required to effect such deposit) and, insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the time period ending on the 183rd day after the date of deposit, and the Trustee has received Officers’ Certificates to such effect on the date of such deposit after giving effect theretodeposit;
(e) the Trustee has received an Officers’ Certificate stating that such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, under this Indenture or any other material agreement or material instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; and;
(f) the Company has delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or any Subsidiary of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(g) the Company shall have has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the TrusteeTrustee and independent of the Company, each stating that all conditions precedent with respect provided for or relating to such the Legal Defeasance or the Covenant Defeasance have been complied with. Notwithstanding ;
(h) the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously Company has delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory an Opinion of Counsel reasonably acceptable to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, independent of the Company, to the effect that after the passage of 123 days following the deposit, the trust funds will not be subject to the effect of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law; and
(i) the Company has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee and independent of the Company to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940.
Appears in 1 contract
Sources: Indenture (LDK Solar Co., Ltd.)
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding NotesDefeasance:
(a1) the Company must shall irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money cash in an amountU.S. dollars, non-callable U.S. Government obligations, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case such amounts as shall be sufficient without consideration of reinvestment, in the written opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and of, premium, if any, and interest on such Notes the Securities on the Stated Maturity stated date for payment thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of applicable redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofdate, as the case may be, in accordance with the terms of this Indenture and the Notes;
(b2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory in the United States reasonably acceptable to the Trustee stating that confirming that:
(1a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(2b) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders of the Notes will shall not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit and such Legal Defeasance to be effected with respect to such Notes and will shall be subject to United States federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were had not to occuroccurred;
(c3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Holders of such outstanding Notes will shall not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit and such Covenant Defeasance to be effected with respect to such Notes and will shall be subject to United States federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were had not to occuroccurred;
(d4) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at on the time date of such deposit after giving effect thereto;
(e) other than a Default or an Event of Default resulting from the borrowing of funds to be applied to such Legal Defeasance or Covenant Defeasance shall not cause deposit and the Trustee to have a conflicting interest within the meaning grant of the Trust Indenture Act (assuming all Notes are in default within the meaning of any Lien securing such Actborrowings);
(f5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under this Indenture (other than a Default or an Event of Default resulting from the incurrence of Indebtedness to be applied to such deposit and the grant of any Lien securing such Indebtedness) or any other material agreement or material instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; and;
(g6) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(7) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the TrusteeCounsel, each stating that all conditions precedent with respect provided for or relating to such the Legal Defeasance or the Covenant Defeasance have been complied with; and
(8) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b2) of this Section 9.02 above with respect to a Legal Defeasance need not to be delivered if all Notes Securities not previously theretofore delivered to the Trustee for cancellation (xi) have become due and payable, payable or (yii) will become due and payable within one year at Stated Maturity or are to be called for redemption on the maturity date within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company. Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date in accordance with Article 3.
Appears in 1 contract
Sources: Indenture (LSB Industries Inc)
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding NotesDefeasance:
(a) the Company Issuer or the Parent Guarantor must irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds (or such entity designated by the Trustee), in trust trust, (i) with respect to the Dollar Notes, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders holders of such the Dollar Notes: (1) money , cash in an amountU.S. Dollars, or (2) non-callable U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereofof cash in U.S. Dollars and non-callable U.S. Government Obligations, and (ii) with respect to the Euro Notes, for the benefit of the holders of the Euro Notes, cash in Euros, non-callable European Government Obligations, or a combination of cash in Euros and non-callable European Government Obligations, in each case sufficient without reinvestmentcase, in such amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and dischargethe principal of, and which shall be applied by the Trustee to pay interest, premium and discharge, the entire indebtedness in respect of the principal of and premiumAdditional Amounts, if any, and interest on such the outstanding Notes on the Stated Maturity thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of applicable redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofdate, as the case may be, in accordance with the terms of this Indenture and the NotesIssuer or the Parent Guarantor must specify whether the Notes are being defeased to maturity or to a particular redemption date;
(b) in the case of Legal Defeasance, the Company shall Issuer or the Parent Guarantor must have delivered to the Trustee an Opinion opinion of Counsel satisfactory counsel of recognized standing with respect to U.S. federal income tax matters (reasonably acceptable to the Trustee stating Trustee) confirming that (1i) the Company Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or (2ii) since the date of this IndentureIssue Date, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, that (and based thereon such opinion shall confirm that, ) the Holders beneficial owners of the outstanding Notes will shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Legal Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were had not to occuroccurred;
(c) in the case of Covenant Defeasance, the Company shall Issuer or the Parent Guarantor must have delivered to the Trustee an Opinion opinion of Counsel counsel of recognized standing with respect to U.S. federal income tax matters (reasonably acceptable to the effect Trustee) confirming that the Holders beneficial owners of such the outstanding Notes will shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Covenant Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were had not to occuroccurred;
(d) no Default or Event of Default with respect to the outstanding Notes shall have has occurred and be is continuing at on the time date of such deposit after giving effect thereto(other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);
(e) such Legal Defeasance or Covenant Defeasance shall not cause Defeasance, including the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act deposit described in clause (assuming all Notes are in default within the meaning of such Acta);
(f) such Legal Defeasance or Covenant Defeasance , above, shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company Parent Guarantor or any of its Subsidiaries is a party or by which the Company Parent Guarantor or any of its Subsidiaries is bound;
(f) the Issuer or the Parent Guarantor must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Issuer or the Parent Guarantor with the intent of preferring the holders of Notes over the other creditors of the Issuer or the Parent Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or the Parent Guarantor or others; and
(g) the Company shall have delivered Issuer or the Parent Guarantor must deliver to the Trustee an Officers’ Certificate and an Opinion opinion of Counsel in form counsel (and substance reasonably acceptable to the TrusteeTrustee shall rely on both absolutely), each stating that all conditions precedent with respect relating to such the Legal Defeasance or the Covenant Defeasance have been complied with. Notwithstanding If the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 funds deposited with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payableto effect Covenant Defeasance are insufficient to pay the principal of, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the namepremium, if any, and at interest on the expenseNotes when due because of any acceleration occurring after an Event of Default, of then the CompanyIssuer and the Guarantors shall remain liable for such payments.
Appears in 1 contract
Sources: Indenture
Conditions to Defeasance. In order to (a) The Companies may exercise either Legal Defeasance their legal defeasance option or Covenant Defeasance its covenant defeasance option, in each case, with respect to the outstanding NotesSecurities of a series only if:
(ai) the Company must Companies irrevocably have deposited or caused to be deposited deposit in trust with the Trustee as trust funds cash in trust for the purpose of making the following paymentsU.S. Dollars, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money U.S. Government Obligations or a combination thereof in an amount, amount sufficient or (2) U.S. Government Obligations, the principal of and the interest on which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will providebe sufficient, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteesufficient, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on the Securities of such Notes on the series when due at Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofredemption, as the case may be, in accordance with including interest thereon to maturity or the terms Redemption Date; provided that upon any redemption that requires the payment of a premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the premium calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the date of the redemption (and any such deficit shall be set forth in a written notice delivered to the Holders and the NotesTrustee at least two (2) Business Days prior to the Redemption Date);
(bii) the Companies deliver to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, premium, if any, and interest when due on all the Securities of such series to Stated Maturity or redemption, as the case may be; provided that upon any redemption that requires the payment of a premium the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the premium calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the date of the redemption (and any such deficit shall be set forth in a written notice delivered to the Holders and the Trustee at least two (2) Business Days prior to the Redemption Date);
(iii) 123 days pass after the deposit is made and during the 123-day period no Default specified in Section 6.01(f) or (g) with respect to any Company occurs which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any other agreement binding on the Companies;
(v) in the case of Legal Defeasancethe legal defeasance option, the Company Companies shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has Companies have received from, or there has been published by, the Internal Revenue Service a ruling ruling, or (2) since the date of this Indenture, Indenture there has been a change in the applicable United States federal Federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders of the Notes will not recognize income, gain or loss for United States federal Federal income tax purposes as a result of the such deposit and Legal Defeasance to be effected with respect to such Notes defeasance and will be subject to United States federal Federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were defeasance had not to occur;
(c) in the case of Covenant Defeasanceoccurred, the Company shall have delivered to the Trustee an provided that such Opinion of Counsel to shall not be required by this clause (v) if all the effect that the Holders Securities of such outstanding Notes will series not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously theretofore delivered to the Trustee for cancellation (x) have become due and payable, payable or (y) will become due and payable within one year at their Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the CompanyCompanies;
(vi) such exercise does not impair the right of any Holder to receive payment of principal, premium, if any, and interest on such Holder’s Securities of such series on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such Holder’s Securities of such series;
(vii) in the case of the covenant defeasance option, the Companies shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; and
(viii) the Companies deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Securities of such series to be so defeased and discharged as contemplated by this Article XII have been complied with.
(b) Before or after a deposit, the Companies may make arrangements satisfactory to the Trustee for the redemption of such Securities at a future date in accordance with Article IV.
Appears in 1 contract
Sources: Indenture (Triton International LTD)
Conditions to Defeasance. In order to The Company may exercise either its Legal Defeasance option or its Covenant Defeasance with respect to the outstanding Notesoption only if:
(a1) the Company must irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money in an amountHolders, or (2) U.S. Legal Tender, U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case such amounts as will be sufficient without reinvestment, in the opinion of as confirmed by a letter from a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and form of an agreed-upon procedures letter in form and substance reasonably acceptable to the Trusteecustomary form, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premiumof, premium (including any Additional Amounts), if any, and interest on such the Notes on the Stated Maturity stated date for payment thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of applicable redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofdate, as the case may be, in accordance with the terms of this Indenture and the Notes;
(b2) in the case of Legal Defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel satisfactory from counsel in the United States who is reasonably acceptable to the Trustee stating that and independent of the Company to the effect that, subject to customary assumptions and exclusions:
(1A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(2B) since the date of this IndentureIssue Date, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, subject to customary assumptions and exclusions and based thereon such opinion Opinion of Counsel shall confirm state that, the Holders of the Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Legal Defeasance to be effected with respect to such Notes and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were had not to occuroccurred;
(c3) in the case of Covenant Defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel from counsel in the United States who is reasonably acceptable to the Trustee to the effect that that, subject to customary assumptions and exclusions the Holders of such outstanding Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Covenant Defeasance to be effected with respect to such Notes and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were had not to occuroccurred;
(d4) in the case of Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee:
(A) an Opinion of Counsel from counsel in Canada who is reasonably acceptable to the Trustee to the effect that, subject to customary assumptions and exclusions based upon Canadian federal or provincial law then in effect, Holders will not recognize income, gain or loss for Canadian federal or provincial tax purposes, including withholding tax except for withholding tax then payable on interest payments due, as a result of Legal Defeasance or Covenant Defeasance, as the case may be, and will be subject to Canadian federal or provincial taxes on the same amounts and in the same manner and at the same time as would have been the case if such Legal Defeasance or Covenant Defeasance, as the case may be, had not occurred; or
(B) a ruling directed to the Trustee received from the federal or provincial tax authorities of Canada and the relevant province thereof to the same effect as the Opinion of Counsel described in clause (A) above;
(5) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at on the time date of the deposit pursuant to clause (1) of this Section 8.2 (except any Default or Event of Default resulting from the failure to comply with Section 3.8 as a result of the borrowing of the funds required to effect such deposit and the granting of Liens in connection therewith) and the Trustee has received Officers’ Certificates to such effect on the date of such deposit after giving effect theretodeposit;
(e6) the Trustee has received an Officers’ Certificate stating that such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, Default under this Indenture or any other material agreement or material instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(7) the Company has delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or any Subsidiary of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and
(g) 8) the Company shall have has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form (which Opinion of Counsel may be subject to customary assumptions and substance exclusions) from counsel who is reasonably acceptable to the Trustee, each stating that all conditions precedent with respect provided for or relating to such the Legal Defeasance or the Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Sources: Indenture (MDC Partners Inc)
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notes:
(a) the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of benefit of, the Holders of such Notes: (1) money in cash in U.S. Dollars in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants in the case of U.S. Government Obligations (or, if two or more nationally recognized firms of independent public accountants decline to issue such opinion after the Company has made reasonable efforts to obtain such an opinion, in the opinion of the Company’s chief financial officer) expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect theretothereto (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Debt) and the granting of any Lien to secure such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such the Trust Indenture Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundbound (other than a default or event of default under any such other instrument resulting from borrowing funds to be applied to make the deposit under this Indenture in connection with the legal defeasance or covenant defeasance (and any similar concurrent deposit relating to other Debt) and the granting of Liens in connection therewith); and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Defeasance. In order to exercise either Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance with respect to the outstanding Notes:
(a) the Company Issuer must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Company Issuer has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the CompanyIssuer) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the such Notes;
(b) in the case of Legal Defeasancean election under Section 8.2, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this the Indenture, there has been a change in the applicable United States federal income tax lawlaw (whether by statute or judicial precedent), in either case of (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the such Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit deposit, defeasance and Legal Defeasance discharge to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit deposit, defeasance and Legal Defeasance discharge were not to occur;
(c) in the case of Covenant Defeasancean election under Section 8.3, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance covenant defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance covenant defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect theretothereto (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien to secure such borrowing);
(e) such Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Actact);
(f) such Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company Issuer is a party or by which the Company Issuer is bound; and
(g) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the TrusteeCounsel, each stating that all conditions precedent with respect to such Legal Defeasance defeasance or Covenant Defeasance covenant defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 above with respect to a Legal Defeasance defeasance need not to be delivered if all Notes not previously theretofore delivered to the Trustee for cancellation (x1) have become due and payable, or (y2) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the CompanyIssuer. The Collateral will be released from the Lien securing the Notes, as provided under Section 11.4, upon a legal defeasance or covenant defeasance in accordance with the provisions described above.
Appears in 1 contract
Sources: Indenture (FTS International, Inc.)
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notes:
its covenant defeasance option only if: (a) the Company must shall irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds or another entity designated by the Trustee for such purpose, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money in an amountHolders, U.S. dollars or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereofof U.S. dollars and U.S. Government Obligations, in each case sufficient without reinvestmentsuch amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of of, or interest and premium, if any, and interest on such the outstanding Notes issued hereunder on the Stated Maturity thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the applicable Redemption Date thereofDate, as the case may be, in accordance with the terms of this Indenture and the Notes;
Company must specify whether the Notes are being defeased to maturity or to a particular Redemption Date; (b) in the case of Legal Defeasancelegal defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel satisfactory reasonably acceptable to the Trustee stating that confirming that, subject to customary assumptions and exclusions, (1i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2ii) since the date of this IndentureIssue Date, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders of the Notes will shall not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit such legal defeasance and Legal Defeasance to be effected with respect to such Notes and will shall be subject to United States federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were legal defeasance had not to occur;
occurred; (c) in the case of Covenant Defeasancecovenant defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect that Trustee confirming that, subject to customary assumptions and exclusions, the Holders of such the respective outstanding Notes will shall not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit such covenant defeasance and Covenant Defeasance to be effected with respect to such Notes and will shall be subject to United States federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were covenant defeasance had not to occur;
occurred; (d) no Default such legal defeasance or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; and
(ge) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings); (f) the Company shall have delivered deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trusteeeffect that, each stating assuming, among other things, no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and assuming that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding no Holder is an “insider” of the foregoingCompany under applicable bankruptcy law, after the 91st day following the deposit, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need trust funds shall not to be delivered if all Notes not previously delivered subject to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving effect of notice Section 547 of redemption by the Trustee in the name, and at the expense, Title 11 of the Company.United States Code; 58
Appears in 1 contract
Sources: Indenture (FedNat Holding Co)
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(ai) the Company must shall irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds or another entity designated by the Trustee for such purpose, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money in an amountHolders, U.S. dollars or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereofof U.S. dollars and U.S. Government Obligations, in each case sufficient without reinvestmentsuch amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of of, or interest and premium, if any, and interest on such the outstanding Notes issued hereunder on the Stated Maturity thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the applicable Redemption Date thereofDate, as the case may be, in accordance with the terms of this Indenture and the NotesCompany must specify whether the Notes are being defeased to maturity or to a particular Redemption Date;
(bii) in the case of Legal Defeasancelegal defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel satisfactory reasonably acceptable to the Trustee stating that confirming that, subject to customary assumptions and exclusions, (1a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2b) since the date of this Indenture69 Issue Date, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders of the Notes will shall not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit such legal defeasance and Legal Defeasance to be effected with respect to such Notes and will shall be subject to United States federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were legal defeasance had not to occuroccurred;
(ciii) in the case of Covenant Defeasancecovenant defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect that Trustee confirming that, subject to customary assumptions and exclusions, the Holders of such the respective outstanding Notes will shall not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit such covenant defeasance and Covenant Defeasance to be effected with respect to such Notes and will shall be subject to United States federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were covenant defeasance had not to occuroccurred;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(eiv) such Legal Defeasance legal defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(v) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings);
(vi) the Company shall deliver to the Trustee an Opinion of Counsel to the effect that, assuming, among other things, no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st day following the deposit, the trust funds shall not be subject to the effect of Section 547 of Title 11 of the United States Code;
(vii) the Company shall deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
(gviii) the Company shall have delivered deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel in form (which Opinion of Counsel may be subject to customary assumptions and substance reasonably acceptable to the Trusteeexclusions), each stating that all conditions precedent with respect relating to such Legal Defeasance the legal defeasance or Covenant Defeasance the covenant defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notes:
(a) the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants (or, if two or more nationally recognized firms of independent public accountants decline to issue such opinion after the Company has made reasonable efforts to obtain such an opinion, in the opinion of the Company’s chief financial officer) expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense ex- pense of the Company) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect theretothereto (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Debt) and the granting of any Lien to secure such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundbound (other than a default or event of default under any such other instrument resulting from borrowing funds to be applied to make the deposit under this Indenture in connection with the legal defeasance or covenant defeasance (and any similar concurrent deposit relating to other Debt) and the granting of Liens in connection therewith); and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(a) the Company must irrevocably have deposited or caused to be deposited deposits in trust with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, amount sufficient or (2) U.S. Government Obligations, which through the scheduled payment principal of principal and interest in respect thereof in accordance with their terms on which will providebe sufficient, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestmentthereof sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and dischargethe principal of, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, premium (if any, ) and interest on such the relevant series of Notes on the Stated Maturity thereof when due at maturity or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofredemption, as the case may be, in accordance with the terms of this Indenture and the Notesincluding interest thereon to maturity or such redemption date;
(b) in the case of Legal Defeasancethe legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling ruling, or (2) since the date of this Indenture, Indenture there has been a change in the applicable United States federal Federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders of the such series of Notes will not recognize income, gain or loss for United States federal Federal income tax purposes as a result of the such deposit and Legal Defeasance to be effected with respect to such Notes defeasance and will be subject to United States federal Federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were defeasance had not to occuroccurred;
(c) in the case of Covenant Defeasancethe covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding series of Notes will not recognize income, gain or loss for United States federal Federal income tax purposes as a result of the such deposit and Covenant Defeasance to be effected with respect to such Notes defeasance and will be subject to United States federal Federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were defeasance had not to occuroccurred;
(d) no Default or Event of Default the deposit does not constitute a default under any other material agreement binding on the Company (other than that resulting with respect to any Indebtedness being defeased from any borrowing of funds to be applied to make the outstanding Notes shall have occurred deposit required to effect such legal defeasance option or covenant defeasance option and be continuing at any similar and simultaneous deposit relating to such Indebtedness, and the time granting of such deposit after giving effect theretoLiens in connection therewith);
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Company delivers to the Trustee an Opinion of Counsel to have the effect that the trust resulting from the deposit does not constitute, or is qualified as, a conflicting interest within regulated investment company under the meaning Investment Company Act of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);1940; and
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the TrusteeCounsel, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance the defeasance and discharge of the Notes as contemplated by this Article Eight have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 above with respect to a Legal Defeasance defeasance need not to be delivered if all Notes not previously therefore delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Sources: Indenture (Qorvo, Inc.)
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(ai) the Company must shall irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money in an amountHolders, U.S. dollars or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereofof U.S. dollars and U.S. Government Obligations, in each case sufficient without reinvestmentsuch amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of of, or interest and premium, if any, and interest on such the outstanding Notes issued hereunder on the Stated Maturity thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the applicable Redemption Date thereofDate, as the case may be, in accordance with the terms of this Indenture and the NotesCompany must specify whether the Notes are being defeased to maturity or to a particular Redemption Date;
(bii) in the case of Legal Defeasancelegal defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel satisfactory reasonably acceptable to the Trustee stating that that, subject to customary assumptions and exclusions, (1a) the Company has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or (2b) since the date of this IndentureIssue Date, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders of the Notes will shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit such legal defeasance and Legal Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were legal defeasance had not to occuroccurred;
(ciii) in the case of Covenant Defeasancecovenant defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect that Trustee stating that, subject to customary assumptions and exclusions, the Holders of such the respective outstanding Notes will shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit such covenant defeasance and Covenant Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were covenant defeasance had not to occuroccurred;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(eiv) such Legal Defeasance legal defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound;
(v) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings);
(vi) the Company shall deliver to the Trustee an Opinion of Counsel stating that, assuming, among other things, no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st day following the deposit, the trust funds shall not be subject to the effect of Section 547 of Title 11 of the United States Code;
(vii) the Company shall deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
(gviii) the Company shall have delivered deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel in form (which Opinion of Counsel may be subject to customary assumptions and substance reasonably acceptable to the Trusteeexclusions), each stating that all conditions precedent with respect relating to such Legal Defeasance the legal defeasance or Covenant Defeasance the covenant defeasance, as the case may be, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Defeasance. In order to exercise either Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance with respect to the outstanding Notes:
(a) the Company Issuer must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: :
(1) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest and Additional Interest on such Notes on the Stated Maturity thereof or (if the Company Issuer has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the CompanyIssuer) the Redemption Date redemption date thereof, as the case may be, in accordance with the terms of this Indenture and the such Notes;
(b) in the case of Legal Defeasancean election under Section 8.2, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this the Indenture, there has been a change in the applicable United States federal income tax lawlaw (whether by statute or judicial precedent), in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the such Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit deposit, defeasance and Legal Defeasance discharge to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit deposit, defeasance and Legal Defeasance discharge were not to occur;
(c) in the case of Covenant Defeasancean election under Section 8.3, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance covenant defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance covenant defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect theretothereto (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien to secure such borrowing);
(e) such Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Actact);
(f) such Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company Issuer is a party or by which the Company Issuer is bound; and
(g) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the TrusteeCounsel, each stating that all conditions precedent with respect to such Legal Defeasance defeasance or Covenant Defeasance covenant defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 above with respect to a Legal Defeasance defeasance need not to be delivered if all Notes not previously theretofore delivered to the Trustee for cancellation (x1) have become due and payable, or (y2) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the CompanyIssuer. The Collateral will be released from the Lien securing the Notes, as provided under the Section 11.4, upon a legal defeasance or covenant defeasance in accordance with the provisions described above.
Appears in 1 contract
Sources: Indenture (FTS International, Inc.)
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notes:
(a) the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in cash in U.S. Dollars in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants (or, if two or more nationally recognized firms of independent public accountants decline to issue such opinion after the Company has made reasonable efforts to obtain such an opinion, in the opinion of the Company's chief financial officer) expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect theretothereto (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Debt) and the granting of any Lien to secure such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundbound (other than a default or event of default under any such other instrument resulting from borrowing funds to be applied to make the deposit under this Indenture in connection with the legal defeasance or covenant defeasance (and any similar concurrent deposit relating to other Debt) and the granting of Liens in connection therewith); and
(g) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Defeasance. In order to The Company may exercise either its Legal Defeasance Option or its Covenant Defeasance with respect to the outstanding NotesOption only if:
(a1) the Company must shall irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money in an amountHolders, U.S. dollars or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereofof U.S. dollars and U.S. Government Obligations, in each case sufficient without reinvestmentsuch amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and dischargethe principal of, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of interest and premium, if any, and interest on such the outstanding Notes issued hereunder on the Stated Maturity thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the applicable Interest Payment Dates or Redemption Date thereofDate, as the case may be, in accordance with the terms of this Indenture and the NotesCompany must specify whether the Notes are being defeased to Stated Maturity or to a particular Redemption Date;
(b2) in the case of Legal Defeasancelegal defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel satisfactory reasonably acceptable to the Trustee stating that confirming that, subject to customary assumptions and exclusions, (1a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2b) since the date of this IndentureIssue Date, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit such legal defeasance and Legal Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were legal defeasance had not to occuroccurred;
(c3) in the case of Covenant Defeasancecovenant defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect that Trustee confirming that, subject to customary assumptions and exclusions, the Holders of such the outstanding Notes will shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit such covenant defeasance and Covenant Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were covenant defeasance had not to occuroccurred;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e4) such Legal Defeasance legal defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under, one or more agreements or instruments pursuant to which there is outstanding indebtedness for money borrowed by the Company or any material agreement of its Restricted Subsidiaries in an aggregate principal amount in excess of $10.0 million or, in the case of a revolving credit facility, pursuant to which the Company or material instrument any of its Restricted Subsidiaries may make aggregate borrowings in excess of $10.0 million (other than this Indenture) to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound; and;
(g5) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings);
(6) the Company shall have delivered deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others;
(7) the Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel in form (which Opinion of Counsel may be subject to customary assumptions and substance reasonably acceptable to the Trusteeexclusions), each stating that all conditions precedent with respect in this Indenture relating to such Legal Defeasance the legal defeasance or Covenant Defeasance the covenant defeasance have been complied with. Notwithstanding ; and
(8) the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be Company has delivered if all Notes not previously delivered irrevocable instructions to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year to apply the deposited money toward the payment of the Notes at their Stated Maturity or are to on the applicable Redemption Date, as the case may be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee (which instruction may be contained in the name, and at the expense, of the CompanyOfficers’ Certificate referred to in clause (7) above).
Appears in 1 contract
Sources: Indenture (Lee Enterprises, Inc)
Conditions to Defeasance. In order to (a) The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(ai) the Company must irrevocably have deposited or caused to be deposited deposits in trust with the U.S. Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, amount sufficient or (2) U.S. Government Obligations, which through the scheduled payment principal of principal and interest in respect thereof in accordance with their terms will provideon which shall be sufficient, not later than the due date of any payment, money in an amount or (3) a combination thereofthereof sufficient to pay the principal of, in each and premium (if any), and interest, on the Notes when due at maturity or redemption, as the case sufficient without reinvestmentmay be, in including interest thereon to maturity or such redemption date;
(ii) the opinion of Company delivers to the U.S. Trustee a certificate from a nationally recognized firm of independent public accountants expressed in accountants, a written certification thereof delivered nationally recognized investment bank or a nationally recognized appraisal or valuation firm, with customary assumptions expressing their opinion to the Trustee effect that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in form and substance reasonably acceptable to the Trustee, such amounts as will be sufficient to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest when due on such all the Notes on the Stated Maturity thereof to maturity or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofredemption, as the case may be, in accordance with the terms of this Indenture and the Notes;
(biii) the Company delivers to the Trustees an Opinion of Counsel in Canada to the effect that: the beneficial owners of the notes will not recognize income, gain or loss for Canadian federal income tax purposes as a result of the defeasance or covenant defeasance; and the defeasance or covenant defeasance will not otherwise alter those beneficial owners’ Canadian federal income tax treatment of principal and interest payments on the notes;
(iv) such defeasance or covenant defeasance does not result in a breach or violation of, or constitute a default under, any indenture or other agreement or instrument for borrowed money to which the Company is a party or by which the Company is bound (other than a default or event of default resulting from the borrowing of funds to be applied to such deposit and any simultaneous deposit relating to other indebtedness and, in each case, the granting of Liens in connection therewith);
(v) no Default or Event of Default under this Indenture has occurred and is continuing after giving effect to such defeasance or covenant defeasance (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and any simultaneous deposit relating to other indebtedness and, in each case, the granting of Liens in connection therewith);
(vi) the Company is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada) and is not insolvent, unable to pay its debts in full or on the eve of insolvency under applicable provincial law on the date of such deposit;
(vii) in the case of Legal Defeasancethe legal defeasance option, the Company shall have delivered to the Trustee Trustees an Opinion of Counsel satisfactory to the Trustee stating effect that (1A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling ruling, or (2B) since the date of this Indenture, Indenture there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders beneficial owners of the Notes will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit such defeasance and Legal Defeasance to be effected with respect to that such Notes and defeasance will be subject to not otherwise alter those beneficial owners’ United States federal income tax treatment of principal and interest payments on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occurNotes;
(cviii) in the case of Covenant Defeasancethe covenant defeasance option, the Company shall have delivered to the Trustee Trustees an Opinion of Counsel to the effect that the Holders beneficial owners of such outstanding the Notes will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit such defeasance and Covenant Defeasance to be effected with respect to that such Notes and defeasance will be subject to not otherwise alter those beneficial owners’ United States federal income tax treatment of principal and interest payments on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundNotes; and
(gix) the Company shall have delivered delivers to the Trustee Trustees an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable Counsel, each to the Trustee, each stating effect that all conditions precedent with respect to such Legal Defeasance defeasance or Covenant Defeasance covenant defeasance as contemplated by this Article 8 have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause .
(b) In connection with any defeasance or covenant defeasance involving a redemption that requires the payment of this a “make-whole” amount, the amount deposited with the U.S. Trustee as provided in Section 9.02 8.2(a)(i) in respect of such “make-whole” amount shall be sufficient if equal to the “make-whole” amount calculated as of the date of deposit, with respect to a Legal Defeasance need not any deficit as of the date of redemption (any such amount, the “Applicable Premium Deficit”) only required to be delivered if all Notes not previously deposited with the U.S. Trustee on or prior to the date of redemption. Any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the U.S. Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to simultaneously with the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companyapplied toward such redemption.
Appears in 1 contract
Sources: Indenture (Open Text Corp)
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(a) the Company must shall irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds or another entity designated by the Trustee for such purpose, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money in an amountHolders, U.S. dollars or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereofof U.S. dollars and U.S. Government Obligations, in each case sufficient without reinvestmentsuch amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of of, or interest and premium, if any, and interest on such the outstanding Notes issued hereunder on the Stated Maturity thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the applicable Redemption Date thereofDate, as the case may be, in accordance with the terms of this Indenture and the NotesCompany must specify whether the Notes are being defeased to maturity or to a particular Redemption Date;
(b) in the case of Legal Defeasancelegal defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel satisfactory reasonably acceptable to the Trustee stating that confirming that, subject to customary assumptions and exclusions, (1i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2ii) since the date of this IndentureIssue Date, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders of the Notes will shall not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit such legal defeasance and Legal Defeasance to be effected with respect to such Notes and will shall be subject to United States federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were legal defeasance had not to occuroccurred;
(c) in the case of Covenant Defeasancecovenant defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect that Trustee confirming that, subject to customary assumptions and exclusions, the Holders of such the respective outstanding Notes will shall not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit such covenant defeasance and Covenant Defeasance to be effected with respect to such Notes and will shall be subject to United States federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were covenant defeasance had not to occuroccurred;
(d) no Default such legal defeasance or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; and;
(e) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings);
(f) the Company shall deliver to the Trustee an Opinion of Counsel to the effect that, assuming, among other things, no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st day following the deposit, the trust funds shall not be subject to the effect of Section 547 of Title 11 of the United States Code;
(g) the Company shall have delivered deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
(h) the Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel in form (which Opinion of Counsel may be subject to customary assumptions and substance reasonably acceptable to the Trusteeexclusions), each stating that all conditions precedent with respect relating to such Legal Defeasance the legal defeasance or Covenant Defeasance the covenant defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(ai) with reference to this Section 8.02, the Company must has irrevocably have deposited or caused to be deposited in trust with the Trustee as trust funds in trust solely for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such the Notes: (1) , for payment of the principal of and interest on the Notes, money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount Obligations or (3) a combination thereof, in each case thereof sufficient without reinvestment(unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in form and substance reasonably acceptable to respect thereof payable by the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of discharge the principal of and premium, if any, and accrued interest on such the outstanding Notes on the Stated Maturity thereof or to maturity (if the Company has made irrevocable irrevocably provided for under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the NotesTrustee);
(bii) such deposit shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the case Company is a party or by which it is bound;
(iii) no Default with respect to the Notes shall have occurred and be continuing on the date of Legal Defeasance, such deposit;
(iv) the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory that (1) the Holders of the Notes will not recognize income, gain or loss for Federal income tax purposes as a result of the Company's exercise of its option under this Section and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred and (2) the Holders of the Notes have a valid security interest in the trust funds; and
(v) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent herein provided relating to the defeasance contemplated by this Section have been complied with. In the case of legal defeasance, the Opinion of Counsel referred to in clause (1iv)(1) above must confirm that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2B) since the date of this Indenture, there has been a change in the applicable United States federal Federal income tax law, in either case (1) or (2) case, to the effect that, and based thereon such opinion shall confirm thatthereon, the Holders of the Notes will not recognize income, gain or loss for United States federal Federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companylegal defeasance.
Appears in 1 contract
Sources: Indenture (Nations Title Co Inc)
Conditions to Defeasance. In order to exercise either Legal Defeasance legal defeasance or Covenant Defeasance with respect to the outstanding Notescovenant defeasance:
(a) the Company Issuer must irrevocably have deposited deposit or caused cause to be deposited in trust with the Trustee as trust funds in trust (or such other entity designated or appointed by it for this purpose), for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders holders of such the Notes: (1) money , cash in an amountdollars, or (2) non-callable U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount Obligations or (3) a combination thereof, in each case sufficient without reinvestmentsuch amounts as will be sufficient, in the opinion of a nationally internationally recognized investment bank, appraisal firm or firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of discharge the principal of and of, premium, if any, and interest interest, on such the outstanding Notes on the Stated Maturity thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of applicable redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofdate, as the case may be, in accordance with the terms of this Indenture and the NotesIssuer must (i) specify whether the Notes are being defeased to such Stated Maturity or to a particular redemption date; and (ii) if applicable, have delivered to the Trustee an irrevocable notice to redeem all the outstanding Notes of such principal, premium, if any, or interest;
(b) in the case of Legal DefeasanceDefeasance under Section 8.02, the Company shall Issuer must have delivered to the Trustee an Opinion of Counsel satisfactory reasonably acceptable to the Trustee stating that (1i) the Company Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling ruling, or (2ii) since the date of this Indenture, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders beneficial owners of the outstanding Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Legal Defeasance to be effected with respect to such Notes and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were had not to occuroccurred;
(c) in the case of Covenant DefeasanceDefeasance under Section 8.03, the Company shall Issuer must have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the Holders beneficial owners of such the outstanding Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Covenant Defeasance to be effected with respect to such Notes and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were had not to occuroccurred;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall Issuer must have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of preferring the holders of the Notes over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others;
(e) the Issuer must have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel in form and substance Counsel, reasonably acceptable to the Trustee, subject to customary assumptions and qualifications, each stating that all conditions precedent with respect relating to such the Legal Defeasance or the Covenant Defeasance Defeasance, as the case may be, have been complied with. Notwithstanding .
(f) If the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 funds deposited with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payableto effect Covenant Defeasance are insufficient to pay the principal of, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the namepremium, if any, and at interest on the expenseNotes when due because of any acceleration occurring after an Event of Default, of then the CompanyIssuer will remain liable for such payments.
Appears in 1 contract
Sources: Indenture (Danaos Corp)
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notes:
(a) the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants (or, if two or more nationally recognized firms of independent public accountants decline to issue such opinion after the Company has made reasonable efforts to obtain such an opinion, in the opinion of the Company’s chief financial officer) expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect theretothereto (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Debt) and the granting of any Lien to secure such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundbound (other than a default or event of default under any such other instrument resulting from borrowing funds to be applied to make the deposit under this Indenture in connection with the legal defeasance or covenant defeasance (and any similar concurrent deposit relating to other Debt) and the granting of Liens in connection therewith); and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(ai) the Company must irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money Holders, cash in an amountU.S. dollars, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereofof cash in U.S. dollars and U.S. Government Obligations, in each case sufficient without reinvestmentsuch amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of of, or interest and premium, if any, and interest on such Notes the outstanding Securities issued hereunder on the Stated Maturity thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the applicable Redemption Date thereofDate, as the case may be, in accordance with the terms of this Indenture and the NotesCompany must specify whether the notes are being defeased to maturity or to a particular Redemption Date;
(bii) in the case of Legal Defeasancelegal defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel satisfactory reasonably acceptable to the Trustee stating that confirming that, subject to customary assumptions and exclusions, (1a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2b) since the date of this Indenture, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders and beneficial owners of the Notes will Securities shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit such legal defeasance and Legal Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were legal defeasance had not to occuroccurred;
(ciii) in the case of Covenant Defeasancecovenant defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect that Trustee confirming that, subject to customary assumptions and exclusions, the Holders and beneficial owners of such outstanding Notes will the Securities shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit such covenant defeasance and Covenant Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were covenant defeasance had not to occuroccurred;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(eiv) such Legal Defeasance legal defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under, under any material agreement or material instrument (other than this Indenture) to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound;
(v) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings);
(vi) the Company must deliver to the Trustee an Opinion of Counsel to the effect that, assuming, among other things, no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st day following the deposit, the trust funds shall not be subject to the effect of Section 547 of Title 11 of the United States Code;
(vii) the Company must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
(gviii) the Company shall have delivered delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel in form (which Opinion of Counsel may be subject to customary assumptions and substance reasonably acceptable to the Trusteeexclusions), each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance the defeasance and discharge of the Securities and this Indenture as contemplated by this Article VIII have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Sources: Indenture (Brunswick Corp)
Conditions to Defeasance. In order to (a) The Issuer may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(ai) the Company must Issuer irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or an entity designated or appointed (as trust funds agent) by it for this purpose) cash in trust U.S. Dollars or U.S. Government Obligations or a combination thereof sufficient (as determined by the Issuer in good faith), for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provideprincipal, not later than the due date of any payment, money in an amount or premium (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, ) and interest on such the Notes on the Stated Maturity thereof to redemption or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofmaturity, as the case may bebe;
(ii) the Issuer delivers to the Trustee an Officer’s Certificate stating that the deposit was not made with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or any Guarantors or others;
(iii) the deposit does not constitute a default under any other material agreement or contract relating to Indebtedness binding on the Issuer (other than a default resulting from borrowing funds to be applied to make the deposit required to effect such legal defeasance or covenant defeasance and any similar and simultaneous deposit relating to such other Indebtedness and, in accordance with each case, the terms granting of this Indenture and the Notes;Liens in connection therewith);
(biv) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel satisfactory Counsel, subject to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) customary assumptions and exclusions to the effect that, and based thereon such opinion shall confirm that, that the Holders beneficial owners of the Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the such deposit and Legal Defeasance to be effected with respect to such Notes defeasance and will be subject to United States U.S. federal income tax on the same amount, amount and in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were defeasance had not to occur;
occurred (c) and, in the case of Covenant Defeasancethe legal defeasance option only, such Opinion of Counsel must be based on a ruling received from, or published by, the Company shall have delivered Internal Revenue Service or a change in applicable U.S. federal income tax law); and
(v) the Issuer delivers to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel in form (which Opinion of Counsel may be subject to customary assumptions and substance reasonably acceptable to the Trusteeexclusions), each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article 8 have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (bSection 8.02(a)(iv) of this Section 9.02 with respect to a Legal Defeasance above need not to be delivered if all Notes not previously theretofore delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become are due and payable within one year at Stated Maturity or are to be called for redemption (y) have been or will become due and payable within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the CompanyIssuer. In addition, the Issuer will deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel (which may be subject to customary assumptions and exclusions) each stating that all conditions precedent under this Indenture relating to the legal defeasance or covenant defeasance have been complied with.
(b) Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article 3 of this Indenture.
Appears in 1 contract
Conditions to Defeasance. In order to (a) The Issuer may exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notes:
(a) the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notesonly if: (1) money the Issuer must irrevocably deposit with the Trustee, in an amounttrust, for the benefit of the Holders, cash in U.S. dollars, U.S. dollar-denominated Government Securities, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient such amounts and with such maturities as will be sufficient, without reinvestmentconsideration of any reinvestment of interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, investment bank or appraisal firm, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of pay: (a) the principal of and of, premium, if any, and interest due on such the Notes on the Stated Maturity thereof stated maturity date or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the on a specified Redemption Date thereofDate, as the case may be, in accordance with and (b) if applicable, interest due on the terms Notes on any intervening interest payment date, and the Issuer must specify whether such Notes are being defeased to maturity or to a specified Redemption Date; provided, that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture and to the Notes;
extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of deposit, with any deficit as of the Redemption Date (b) in the case of Legal Defeasanceany such amount, the Company “Applicable Premium Deficit”) required to be deposited with the Trustee on or prior to the Redemption Date. Any Applicable Premium Deficit shall have be set forth in an Officer’s Certificate delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for United States federal income tax purposes as a result of simultaneously with the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be effected with respect to applied toward such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companyredemption.
Appears in 1 contract
Conditions to Defeasance. In order to (a) The Issuer may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(ai) the Company must Issuer irrevocably have deposited or caused to be deposited deposits in trust with the Trustee cash in U.S. Dollars sufficient to pay the principal of and premium (if any) and interest on the Notes when due at maturity or redemption, as trust funds in trust for the purpose of making case may be;
(ii) the following payments, specifically pledged as security for, and dedicated solely Issuer delivers to the benefits of the Holders of such Notes: (1) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) Trustee a combination thereof, in each case sufficient without reinvestment, in the opinion of certificate from a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to accountants, investment bank or financial advisory firm expressing their opinion that the Trustee payments of principal and interest when due and without reinvestment on any deposited money without investment will provide cash at such times and in form and substance reasonably acceptable to the Trustee, such amounts as will be sufficient to pay and dischargeprincipal, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest when due on such all the Notes on the Stated Maturity thereof to maturity or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofredemption, as the case may be, in accordance with the terms of this Indenture and the Notes;
(biii) no Default specified in Section 10.01(h) or (i) with respect to the Issuer shall have occurred or is continuing on the date of such deposit;
(iv) the deposit does not constitute a default under any other material agreement or instrument binding on the Issuer;
(v) in the case of Legal Defeasancethe legal defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling ruling, or (2) since the date of this Indenture, Indenture there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders beneficial owners of the Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the such deposit and Legal Defeasance to be effected with respect to such Notes defeasance and will be subject to United States U.S. federal income tax on the same amount, amounts and in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were defeasance had not to occur;
(c) in occurred; provided that upon any redemption that requires the case payment of Covenant Defeasancethe Applicable Premium, the Company amount deposited shall have delivered be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee an Opinion of Counsel equal to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes Applicable Premium calculated as a result of the deposit and Covenant Defeasance date of the notice of redemption, with any deficit as of the date of the redemption only required to be effected deposited with respect to such Notes and will be subject to United States federal income tax the Trustee on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect prior to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning date of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied withredemption. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 the immediately preceding sentence with respect to a Legal Defeasance legal defeasance need not to be delivered if all of the Notes not previously theretofore delivered to the Trustee for cancellation (x) have become due and payable, payable or (y) will become due and payable within one year at Stated their Maturity or are to be called for redemption Date within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the CompanyIssuer;
(vi) such exercise does not impair the right of any Holder to receive payment of principal of, premium, if any, and interest on such Holder’s Notes on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such ▇▇▇▇▇▇’s Notes;
(vii) in the case of the covenant defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; and
(viii) the Issuer delivers to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article XII have been complied with.
(b) Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 1 contract
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notes:
(a) the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds Paying Agent in trust for the purpose of making the following paymentspayment, specifically pledged as security for, and dedicated solely to the benefits of benefit of, the Holders of such Notes: (1) money in euro in an amount, or (2) U.S. European Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in cash in euro in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants (or, if two or more nationally recognized firms of independent public accountants decline to issue such opinion after the Company has made reasonable efforts to obtain such an opinion, in the opinion of the Company's chief financial officer) expressed in a written certification thereof delivered to the Trustee and Paying Agent in form and substance reasonably acceptable to the TrusteeTrustee and Paying Agent, to pay and discharge, and which shall be applied by the Trustee and Paying Agent to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect theretothereto (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Debt) and the granting of any Lien to secure such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such the Trust Indenture Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundbound (other than a default or event of default under any such other instrument resulting from borrowing funds to be applied to make the deposit under this Indenture in connection with the legal defeasance or covenant defeasance (and any similar concurrent deposit relating to other Debt) and the granting of Liens in connection therewith); and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(ai) the Company must irrevocably have deposited deposits or caused causes to be deposited in trust with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, or (2) non-callable U.S. Government Obligations, Obligations or a combination thereof which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provideprovide cash at such times and in such amounts as will be sufficient to pay principal and interest when due on all outstanding Notes (except Notes replaced pursuant to Section 2.6 or delivered to the Trustee for cancellation) to maturity or redemption, not later than as the due date of any payment, money in an amount or case may be;
(3ii) the Company delivers to the Trustee a combination thereof, in each case sufficient without reinvestment, in the opinion of certificate from a nationally recognized firm of independent public accountants expressed expressing their view that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in a written certification thereof such amounts as will be sufficient to pay principal and interest when due on all outstanding Notes (except Notes replaced pursuant to Section 2.6 or delivered to the Trustee and in form and substance reasonably acceptable for cancellation) to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof maturity or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofredemption, as the case may be, in accordance with the terms of this Indenture and the Notes;
(biii) no default or Event of Default with respect to the Notes shall have occurred and be continuing at the time of the deposit described in clause (i) of this Section 8.2;
(iv) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest for purposes of the TIA with respect to any securities of the Company;
(v) such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute default under any other agreement or instrument to which the Company or any Guarantor is a party or by which they are bound;
(vi) in the case of Legal Defeasancethe Company's election of legal defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory from a nationally recognized counsel acceptable to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a tax ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, that the Holders of the outstanding Notes or Persons in their positions will not recognize income, gain or loss for United States federal Federal income tax purposes solely as a result of the deposit and Legal Defeasance to be effected with respect to such Notes legal defeasance and will be subject to United States federal Federal income tax on the same amount, in the same manner manner, including as a result of prepayment, and at the same times as would be have been the case if such deposit and Legal Defeasance were legal defeasance had not to occuroccurred;
(cvii) in the case of Covenant Defeasancethe Company's election of covenant defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such the outstanding Notes will not recognize income, gain or loss for United States federal Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes covenant defeasance and will be subject to United States federal Federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were covenant defeasance had not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundoccurred; and
(gviii) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance the defeasance and discharge of the Notes as contemplated by this Article 8 have been complied with. Notwithstanding the foregoingBefore or after a deposit, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under Company may make arrangements satisfactory to the Trustee for the giving redemption of notice of redemption by the Trustee Notes at a future date in the name, and at the expense, of the Companyaccordance with Article 3.
Appears in 1 contract
Sources: Indenture (Wolverine Tube Inc)
Conditions to Defeasance. In order to exercise either Legal Defeasance legal defeasance or Covenant Defeasance with respect to the outstanding Notescovenant defeasance:
(a) the Company Issuer must irrevocably have deposited deposit or caused cause to be deposited in trust with the Trustee as trust funds in trust Trustee, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such the Notes: (1) money , cash in an amountU.S. dollars, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestmentsuch amounts as will be sufficient, in the opinion of a nationally an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of discharge the principal of and of, premium, if any, and interest interest, on such the outstanding Notes on the Stated Maturity thereof or (if if, at or prior to electing either legal defeasance or covenant defeasance, the Company Issuer has made irrevocable arrangements satisfactory delivered to the Trustee for the giving of an irrevocable notice of redemption by the Trustee in the name and at the expense to redeem all of the Company) outstanding Notes, on the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the Notesapplicable redemption date;
(b) in the case of Legal Defeasancelegal defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel satisfactory reasonably acceptable to the Trustee stating that (1i) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling ruling, or (2ii) since the date of this Indenture, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes legal defeasance and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were defeasance had not to occuroccurred;
(c) in the case of Covenant Defeasancecovenant defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the Holders of such the Notes outstanding Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes covenant defeasance and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were covenant defeasance had not to occuroccurred;
(d) in the case of covenant defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the Holders of the Notes outstanding will not recognize income, gain or loss for tax purposes of any Relevant Taxing Jurisdiction as a result of such covenant defeasance and will be subject to tax of any Relevant Taxing Jurisdiction on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(e) no Default or Event of Default with respect to the outstanding Notes shall will have occurred and be continuing at on the time date of such deposit or, insofar as bankruptcy or insolvency events described in Section 6.01(a)(x) and (xi) is concerned, at any time during the period ending on the 180th day after giving effect theretothe date of such deposit;
(ef) such Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance shall not cause the Trustee to have a conflicting interest within the meaning as defined in this Indenture and for purposes of the Trust Indenture Act (assuming all Notes are in default within with respect to any of the meaning of such Act)Issuer's securities;
(fg) such Legal Defeasance legal defeasance or Covenant Defeasance shall covenant defeasance will not result in a breach or violation of, or constitute a default (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) under, this Indenture or any material agreement or material instrument (other than this Indenture) to which the Company Issuer or any Restricted Subsidiary is a party or by which the Company Issuer or any Restricted Subsidiary is bound; and;
(gh) such defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the U.S. Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(i) the Company Issuer will have delivered to the Trustee an opinion of independent counsel in the country of the Issuer's incorporation to the effect that after the 180th day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and an Opinion of Counsel reasonably acceptable to the Trustee that the Trustee shall have a perfected security interest in such trust funds for the ratable benefit of the Holders;
(j) the Issuer will have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders of the Notes with the intent of defeating, hindering, delaying or defrauding the Issuer's creditors or others, or removing the Issuer's assets beyond the reach of the Issuer's creditors or increasing the Issuer's debts to the detriment of the Issuer's creditors;
(k) no event or condition shall exist that would prevent the Issuer from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 180th day after the date of such deposit; and
(l) the Issuer will have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the TrusteeCounsel, each stating that all conditions precedent with respect provided for relating to such Legal Defeasance either the legal defeasance or Covenant Defeasance the covenant defeasance, as the case may be, have been complied with. Notwithstanding If the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 funds deposited with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payableto effect covenant defeasance are insufficient to pay the principal of, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the namepremium, if any, and at interest on the expenseNotes when due because of any acceleration occurring after an Event of Default, of then the CompanyIssuer shall remain liable for such payments.
Appears in 1 contract
Sources: Indenture (TMM Lines LTD LLC)
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(a) the Company must irrevocably have deposits in trust with the Trustee money in U.S. Dollars, U.S. Government Obligations or a combination thereof for the payment of principal of and interest (including premium, if any) on the Notes to maturity or a Redemption Date permitted under this Indenture; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited or caused shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as if the Redemption Date is the date of the notice of redemption, with any Applicable Premium Deficit only required to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely on or prior to the benefits of the Holders of such Notes: (1) money Redemption Date. Any Applicable Premium Deficit shall be set forth in an amount, or Officer’s Certificate delivered to the Trustee at least two (2) U.S. Government Obligations, which through Business Days prior to the scheduled payment Redemption Date that confirms that such Applicable Premium Deficit shall be applied toward such redemption;
(b) the Company delivers to the Trustee a certificate of a nationally recognized accounting firm expressing their opinion that the payments of principal and interest in respect thereof in accordance with their terms when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide, not later than provide cash at the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee times and in form and substance reasonably acceptable to the Trustee, amounts as will be sufficient to pay principal and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and interest (including premium, if any, and interest ) when due on such all the Notes on the Stated Maturity thereof to maturity or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofredemption, as the case may be, in accordance with the terms of this Indenture and the Notes;
(bc) no Default or Event of Default has occurred and is continuing on the date of the deposit and after giving effect thereto;
(d) the deposit does not constitute a default under any other material agreement or instrument binding on the Company;
(e) in the case of Legal Defeasancethe legal defeasance option, the Company shall have delivered delivers to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling ruling, or (2) since the date of this Indenture, Indenture there has been a change in the applicable United States U.S. federal income tax law, to the effect, in either case (1) or (2) to the effect case, that, and based thereon such opinion the Opinion of Counsel shall confirm that, the Holders beneficial owners of the Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes defeasance and will be subject to United States federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were the defeasance had not to occuroccurred;
(cf) in the case of Covenant Defeasancethe covenant defeasance option, the Company shall have delivered delivers to the Trustee an Opinion of Counsel to the effect that the Holders beneficial owners of such outstanding the Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes that covenant defeasance and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were that covenant defeasance had not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundoccurred; and
(g) the Company shall have delivered delivers to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the TrusteeCounsel, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance the defeasance and discharge of this Indenture and the Notes as contemplated by this Article have been complied with. Notwithstanding the foregoingSimultaneous with a deposit, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under Issuer may make arrangements satisfactory to the Trustee for the giving redemption of notice of redemption by the Trustee Notes at a future date in the name, and at the expense, of the Companyaccordance with Article 3.
Appears in 1 contract
Sources: Indenture (Seadrill LTD)
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(ai) the Company must irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money Holders, cash in an amountU.S. dollars, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereofof cash in U.S. dollars and U.S. Government Obligations, in each case sufficient without reinvestmentsuch amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of of, or interest and premium, if any, and interest on such Notes the outstanding Securities issued hereunder on the Stated Maturity thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the applicable Redemption Date thereofDate, as the case may be, in accordance with the terms of this Indenture and the NotesCompany must specify whether the Securities are being defeased to maturity or to a particular Redemption Date;
(bii) in the case of Legal Defeasancelegal defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel satisfactory confirming that, subject to the Trustee stating that customary assumptions and exclusions, (1a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2b) since the date of this Indenture, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders and beneficial owners of the Notes will Securities shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit such legal defeasance and Legal Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were legal defeasance had not to occuroccurred;
(ciii) in the case of Covenant Defeasancecovenant defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel confirming that, subject to the effect that customary assumptions and exclusions, the Holders and beneficial owners of such outstanding Notes will the Securities shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit such covenant defeasance and Covenant Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were covenant defeasance had not to occuroccurred;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Sources: Indenture (Pico Holdings Inc /New)
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notes:
(a) the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(gf) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the TrusteeCounsel, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Sources: Indenture (CEB Inc.)
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notes:
(a) the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of benefit of, the Holders of such Notes: (1) money in cash in U.S. Dollars in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants (or, if two or more nationally recognized firms of independent public accountants decline to issue such opinion after the Company has made reasonable efforts to obtain such an opinion, in the opinion of the Company's chief financial officer) expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect theretothereto (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Debt) and the granting of any Lien to secure such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such the Trust Indenture Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundbound (other than a default or event of default under any such other instrument resulting from borrowing funds to be applied to make the deposit under this Indenture in connection with the legal defeasance or covenant defeasance (and any similar concurrent deposit relating to other Debt) and the granting of Liens in connection therewith); and
(g) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding NotesDefeasance:
(a) the Company Issuer must irrevocably have deposited deposit or caused cause to be deposited in trust with the Trustee as trust funds in trust Trustee, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such the Notes: (1) money , cash in an amounteuro, or (2) U.S. European Government Obligations, which or a combination thereof (if applicable, in combination with Qualified Interest Rate Agreements) that through the scheduled payment of interest and principal and interest (in respect thereof of such money or European Government Obligations) or other amounts (in accordance with their terms will provide, not later than the due date respect of such Qualified Interest Rate Agreements) shall provide funds (net of any payment, money in an amount or (3amounts payable by the trust pursuant to any such Qualified Interest Rate Agreements) a combination thereof, in each case sufficient without reinvestmentas will be sufficient, in the opinion of a nationally an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of discharge the principal of and of, premium, if any, and interest interest, on such the outstanding Notes on the Stated Maturity thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of applicable redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofdate, as the case may be, in accordance with the terms of this Indenture and the NotesIssuer must (i) specify whether the Notes are being defeased to maturity or to a particular redemption date; and (ii) if applicable, have delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes of such principal, premium, if any, or interest;
(b) in the case of Legal Defeasance, the Company shall Issuer must have delivered to the Trustee an Opinion of Counsel acceptable to the Trustee, in form and substance reasonably satisfactory to the Trustee stating that (1i) the Company Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling ruling, or (2ii) since the date of this IndentureIssue Date, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Legal Defeasance to be effected with respect to such Notes and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were had not to occuroccurred;
(c) in the case of Covenant Legal Defeasance, the Company shall Issuer must have delivered to the Trustee an Opinion of Counsel acceptable to the Trustee, in form and substance reasonably satisfactory to the Trustee to the effect that the Holders of such the outstanding Notes will not recognize income, gain or loss for United States federal income tax purposes in the Netherlands as a result of the deposit and Covenant such Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax in the Netherlands on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Legal Defeasance were had not to occuroccurred;
(d) in the case of Covenant Defeasance, the Issuer must have delivered to the Trustee an Opinion of Counsel acceptable to the Trustee, in form and substance reasonably satisfactory to the Trustee to the effect that the Holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(e) in the case of Covenant Defeasance, the Issuer must have delivered to the Trustee an Opinion of Counsel acceptable to the Trustee, in form and substance reasonably satisfactory to the Trustee to the effect that the Holders of the outstanding Notes will not recognize income, gain or loss for tax purposes in The Netherlands as a result of such Covenant Defeasance and will be subject to tax in The Netherlands on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(f) no Default or Event of Default with respect to the outstanding Notes shall will have occurred and be continuing at on the time date of such deposit after giving effect thereto(other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);
(eg) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee for the Notes to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are as defined in default within the meaning of such Act)this Indenture;
(fh) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default underunder (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit), this Indenture or any material agreement or material instrument (other than this Indenture) to which the Company Issuer or any Restricted Subsidiary is a party or by which the Company Issuer or any Restricted Subsidiary is bound; and;
(gi) such Legal Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the U.S. Investment Company Act of 1940 unless such trust shall be registered under such Act or exempt from registration thereunder;
(j) the Company shall Issuer must have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders of the Notes over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others, or removing assets beyond the reach of the relevant creditors or increasing debts of the Issuer to the detriment of the relevant creditors; and
(k) the Issuer must have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel Counsel, in form and substance reasonably satisfactory to the Trustee of counsel acceptable to the Trustee, each stating that all conditions precedent with respect provided for relating to such the Legal Defeasance or the Covenant Defeasance Defeasance, as the case may be, have been complied with. Notwithstanding If the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 funds and/or securities deposited with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payableto effect Covenant Defeasance are insufficient to pay the principal of, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the namepremium, if any, and at interest on the expenseNotes when due because of any acceleration occurring after an Event of Default, of then the CompanyIssuer will remain liable for such payments.
Appears in 1 contract
Conditions to Defeasance. In order to exercise either Legal Defeasance legal defeasance or Covenant Defeasance with respect to the outstanding Notescovenant defeasance:
(a) the Company Issuer must irrevocably have deposited deposit or caused cause to be deposited with the Trustee as trust funds in trust with the Trustee (or such other party as directed by the Trustee), for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money Holders, cash in an amountSterling, non-callable U.K. Government Securities, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestmentsuch amounts as will be sufficient, in the opinion of a nationally an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of discharge the principal of and of, premium, if any, and interest and any Additional Amounts, if any, on such the outstanding Notes on the Stated Maturity thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of applicable redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofdate, as the case may be, in accordance with the terms of this Indenture and the NotesIssuer must (i) specify whether the Notes are being defeased to maturity or to a particular redemption date; and (ii) if applicable, have delivered to the Trustee an irrevocable notice to redeem all the outstanding Notes of such principal, premium, if any, or interest;
(b) in the case of Legal Defeasancean election under Section 7.02, the Company Issuer shall have delivered to the Trustee (i) an Opinion of Counsel satisfactory reasonably acceptable to the Trustee stating that (1A) the Company has received from, or there has been published by, the U.S. Internal Revenue Service has either published a revenue ruling or issued to the Issuer a private letter ruling, or (2B) since the date of this Indenture, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders beneficial owners of the outstanding Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes legal defeasance and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit legal defeasance had not occurred and Legal Defeasance were not to occur;
(cii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the Holders beneficial owners of such the outstanding Notes will not recognize income, gain or loss for United States federal income tax purposes in the United Kingdom as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes legal defeasance and will be subject to tax in the United States federal income tax Kingdom on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit legal defeasance had not occurred;
(c) in the case of an election under Section 7.03, the Issuer shall have delivered to the Trustee (i) an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and Covenant Defeasance were will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred and (ii) an Opinion of Counsel reasonably acceptable to occurthe Trustee to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for tax purposes in the United Kingdom as a result of such covenant defeasance and will be subject to tax in the United Kingdom on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at (i) on the time date of such deposit (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to such deposit) or, (ii) insofar as bankruptcy or insolvency events described in Section 5.01(a)(iv) and (v) are concerned, at any time during the period ending on the 123rd day after giving effect theretothe date of such deposit;
(e) such Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance shall not cause the Trustee to have a conflicting interest within the meaning as defined in this Indenture and for purposes of the Trust Indenture Act (assuming all Notes are in default within with respect to any of the meaning of such Act)Issuer’s securities;
(f) such Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to such deposit) under, this Indenture or any material agreement or material instrument (other than this Indenture) to which the Company Issuer is a party or by which the Company Issuer is bound; and;
(g) such legal defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the U.S. Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(h) the Issuer shall have delivered to the Trustee an OfficersOpinion of Counsel in the country of the Issuer’s incorporation to the effect that after the 123rd day following the deposit, the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and an Opinion of Counsel reasonably acceptable to the Trustee that the Trustee shall have a perfected security interest in such trust funds for the ratable benefit of the Holders;
(i) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others, or removing assets beyond the reach of the relevant creditors or increasing debts of the Issuer to the detriment of the relevant creditors;
(j) no event or condition shall exist that would prevent the Issuer from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 123rd day after the date of such deposit; and
(k) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the TrusteeCounsel, each stating that all conditions precedent with respect provided for relating to such Legal Defeasance either the legal defeasance or Covenant Defeasance the covenant defeasance, as the case may be, have been complied with. Notwithstanding If the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 funds deposited with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payableto effect covenant defeasance are insufficient to pay the principal of, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the namepremium, if any, and at interest on the expenseNotes when due because of any acceleration occurring after an Event of Default, of then the CompanyIssuer will remain liable for such payments.
Appears in 1 contract
Sources: Indenture (TIG Midco LTD)
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(a) the Company must irrevocably have deposited or caused to be deposited deposits in trust with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, amount sufficient or (2) U.S. Government Obligations, which through the scheduled payment principal of principal and interest in respect thereof in accordance with their terms on which will providebe sufficient, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestmentthereof sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and dischargethe principal of, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, premium (if any, ) and interest on such the relevant series of Notes on the Stated Maturity thereof when due at maturity or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofredemption, as the case may be, in accordance with the terms of this Indenture and the Notesincluding interest thereon to maturity or such redemption date;
(b) in the case of Legal Defeasancethe legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling ruling, or (2) since the date of this Indenture, Indenture there has been a change in the applicable United States federal Federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders of the such series of Notes will not recognize income, gain or loss for United States federal Federal income tax purposes as a result of the such deposit and Legal Defeasance to be effected with respect to such Notes defeasance and will be subject to United States federal Federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were defeasance had not to occuroccurred;
(c) in the case of Covenant Defeasancethe covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding series of Notes will not recognize income, gain or loss for United States federal Federal income tax purposes as a result of the such deposit and Covenant Defeasance to be effected with respect to such Notes defeasance and will be subject to United States federal Federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were defeasance had not to occuroccurred;
(d) no Default or Event of Default the deposit does not constitute a default under any other material agreement binding on the Company (other than that resulting with respect to any Indebtedness being defeased from any borrowing of funds to be applied to make the outstanding Notes shall have occurred deposit required to effect such legal defeasance option or covenant defeasance option and be continuing at any similar and simultaneous deposit relating to such Indebtedness, and the time granting of such deposit after giving effect theretoLiens in connection therewith);
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Company delivers to the Trustee an Opinion of Counsel to have the effect that the trust resulting from the deposit does not constitute, or is qualified as, a conflicting interest within regulated investment company under the meaning Investment Company Act of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);1940; and
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the TrusteeCounsel, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance the defeasance and discharge of the Notes as contemplated by this Article Eight have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Sources: Indenture (Aecom Technology Corp)
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notesunder this Section 8.3:
(a) the Company must Issuer shall have irrevocably have deposited or caused or directed to be irrevocably deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to to, the benefits benefit of the Holders of such the Notes: , (1A) money in an amount, or (2B) U.S. Government Obligations, Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount amount, or (3C) a combination thereof, in each case sufficient without reinvestmentto pay and discharge, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof certificate delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and dischargewithout consideration of any reinvestment, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect all or any specific portion of the principal of and premium, if any, any premium and interest on such the Notes on the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may berespective interest payment date and/or stated maturities, in accordance with the terms of this Indenture and the Notes;
(b) the Issuer shall have advised the Trustee in writing of the case payment or payments of Legal Defeasance, the Company Notes to which such deposit is to be applied;
(c) the Issuer shall have delivered to the Trustee an Opinion opinion of Counsel satisfactory counsel reasonably acceptable to the Trustee stating that that,
(1i) the Company Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or ruling, or
(2ii) since the date of this Indenture, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion of counsel shall confirm that, subject to customary assumptions and exclusions, the Holders or beneficial owners of the Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes purposes, as applicable, as a result of the deposit and Legal Defeasance to be effected with respect to such Notes Defeasance, and will be subject to United States U.S. federal income tax Tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were had not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occuroccurred;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause result in the Trustee to have a conflicting interest trust arising from any such deposit constituting an investment company within the meaning of the Trust Indenture Investment Company Act, unless such trust shall be registered under the Investment Company Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundexempt from registration thereunder; and
(ge) the Company Issuer shall have delivered to each of the Trustee and Collateral Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel in form (which opinion of counsel may be subject to customary assumptions and substance reasonably acceptable to the Trusteeexclusions), each stating that all conditions precedent with respect provided for or relating to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding Upon compliance with the foregoing, the Opinion of Counsel required by clause (bTrustee shall execute instrument(s) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption as reasonably requested by the Trustee in Issuer acknowledging the name, and at the expense, Defeasance of all of the CompanyIssuer’s and the Guarantors’ obligations under the Notes. Such Defeasance shall be effective on and after the date that the conditions set forth in clauses (a) through (e) above are satisfied.
Appears in 1 contract
Sources: Indenture (KOHLS Corp)
Conditions to Defeasance. In order to (a) The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(ai) the Company must irrevocably have deposited or caused to be deposited deposits in trust with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount sufficient, or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of U.S. Government Obligations the principal of and premiuminterest on which will be sufficient, if anyor a combination thereof sufficient, to pay the principal of and interest on such the Notes on the Stated Maturity thereof when due at maturity or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofredemption, as the case may be, in accordance with the terms of this Indenture including interest thereon to maturity or such Redemption Date and the NotesSpecial Interest, if any;
(bii) the Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal and interest when due on all the Notes to maturity or redemption, as the case may be;
(iii) the Company shall have delivered to the Trustee an opinion of counsel to the effect that on the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally;
(iv) the deposit does not constitute a default under any other agreement binding on the Company and is not prohibited by Article 11;
(v) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940;
(vi) in the case of Legal Defeasancethe legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling ruling, or (2) since the date of this Indenture, Indenture there has been a change in the applicable United States federal Federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders of the Notes will not recognize income, gain or loss for United States federal Federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes defeasance and will be subject to United States federal Federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were defeasance had not to occuroccurred;
(cvii) in the case of Covenant Defeasancethe covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize income, gain or loss for United States federal Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes covenant defeasance and will be subject to United States federal Federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were covenant defeasance had not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundoccurred; and
(gviii) the Company shall have delivered delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the TrusteeCounsel, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance the defeasance and discharge of the Notes as contemplated by this ARTICLE 9 have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause .
(b) of this Section 9.02 with respect to Before or after a Legal Defeasance need not to be delivered if all Notes not previously delivered to deposit, the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under Company may make arrangements satisfactory to the Trustee for the giving redemption of notice of redemption by the Trustee Notes at a future date in the name, and at the expense, of the Companyaccordance with ARTICLE 3.
Appears in 1 contract
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notes:
its covenant defeasance option only if: (ai) the Company must irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money Holders, cash in an amountU.S. dollars, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereofof cash in U.S. dollars and U.S. Government Obligations, in each case sufficient without reinvestmentsuch amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of of, or interest and premium, if any, and interest on such Notes the outstanding Securities issued hereunder on the Stated Maturity thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the applicable Redemption Date thereofDate, as the case may be, in accordance with the terms of this Indenture and the Notes;
Company must specify whether the notes are being defeased to maturity or to a particular Redemption Date; (bii) in the case of Legal Defeasancelegal defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel satisfactory reasonably acceptable to the Trustee stating that confirming that, subject to customary assumptions and exclusions, (1a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2b) since the date of this Indenture, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders and beneficial owners of the Notes will Securities shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit such legal defeasance and Legal Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were legal defeasance had not to occur;
occurred; (ciii) in the case of Covenant Defeasancecovenant defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect that Trustee confirming that, subject to customary assumptions and exclusions, the Holders and beneficial owners of such outstanding Notes will the Securities shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit such covenant defeasance and Covenant Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were covenant defeasance had not to occur;
occurred; (d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(eiv) such Legal Defeasance legal defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under, under any material agreement or material instrument (other than this Indenture) to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound; and
(gv) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings); (vi) the Company shall have delivered must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trusteeeffect that, each stating assuming, among other things, no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and assuming that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding no Holder is an “insider” of the foregoingCompany under applicable bankruptcy law, after the 91st day following the deposit, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need trust funds shall not to be delivered if all Notes not previously delivered subject to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving effect of notice Section 547 of redemption by the Trustee in the name, and at the expense, Title 11 of the Company.United States Code; 72
Appears in 1 contract
Sources: Indenture
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(ai) the Company must irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money Holders, cash in an amountU.S. dollars, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereofof cash in U.S. dollars and U.S. Government Obligations, in each case sufficient without reinvestmentsuch amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of of, or interest and premium, if any, and interest on such Notes the outstanding Securities issued hereunder on the Stated Maturity thereof or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the applicable Redemption Date thereofDate, as the case may be, in accordance with the terms of this Indenture and the NotesCompany must specify whether the Securities are being defeased to maturity or to a particular Redemption Date;
(bii) in the case of Legal Defeasancelegal defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel satisfactory confirming that, subject to the Trustee stating that customary assumptions and exclusions, (1a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2b) since the date of this Indenture, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders and beneficial owners of the Notes will Securities shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit such legal defeasance and Legal Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were legal defeasance had not to occuroccurred;
(ciii) in the case of Covenant Defeasancecovenant defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel confirming that, subject to the effect that customary assumptions and exclusions, the Holders and beneficial owners of such outstanding Notes will the Securities shall not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit such covenant defeasance and Covenant Defeasance to be effected with respect to such Notes and will shall be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were covenant defeasance had not to occuroccurred;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(eiv) such Legal Defeasance legal defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under, under any material agreement or material instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.;
Appears in 1 contract
Sources: Indenture (UCP, Inc.)
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding NotesDefeasance:
(ai) the Company Issuer must irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money Holders, cash in an amounteuros, or (2) U.S. non-callable European Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereofof cash in euros and non-callable European Government Obligations, in each case sufficient without reinvestmentsuch amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, without consideration of reinvestment, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and of, premium, if any, and interest due on such the outstanding Notes on the Stated Maturity thereof stated maturity date or (if on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the applicable Redemption Date thereofDate, as the case may be, in accordance with the terms of this Indenture and the NotesIssuer must specify whether the Notes are being defeased to maturity or to a particular Redemption Date;
(bii) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion opinion of Counsel satisfactory counsel in the United States reasonably acceptable to the Trustee stating that confirming that, subject to customary assumptions and exclusions, (1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this IndentureIssue Date, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion of counsel shall confirm that, the Holders of the Notes beneficial owners will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Legal Defeasance to be effected with respect to such Notes and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were had not to occuroccurred;
(ciii) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion opinion of Counsel counsel in the United States reasonably acceptable to the effect that Trustee confirming that, subject to customary assumptions and exclusions, the Holders of such outstanding Notes beneficial owners will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Covenant Defeasance to be effected with respect to such Notes and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were had not to occuroccurred;
(div) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at on the time date of such deposit after giving effect thereto(other than a Default resulting from the borrowing of funds to be applied to such deposit);
(ev) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, under any material agreement or material instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; and;
(gvi) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate of the Company stating that the deposit was not made by the Issuer with the intent of preferring the Holders over the other creditors of the Issuer or the Guarantors with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or any Guarantor or others; and
(vii) the Issuer shall have delivered to the Trustee an Officers’ Certificate of the Company and an Opinion of Counsel in form (which opinion may be subject to customary assumptions and substance reasonably acceptable to the Trusteeexclusions), each stating that all covenants and conditions precedent with respect provided for relating to such the Legal Defeasance or the Covenant Defeasance Defeasance, as the case may be, have been complied with. Notwithstanding the foregoingBefore or after a deposit, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under Issuer may make arrangements satisfactory to the Trustee for the giving redemption of notice of redemption by the Trustee Notes at a future date in the name, and at the expense, of the Companyaccordance with Article III.
Appears in 1 contract
Sources: Indenture (Pra Group Inc)
Conditions to Defeasance. In order to (a) The Issuers may exercise either their Legal Defeasance option or their Covenant Defeasance with respect to the outstanding Notesoption only if:
(ai) the Company must Issuers have irrevocably have deposited or caused to be deposited with the Trustee as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such the Notes: (1) money , cash in an amountU.S. dollars, non-callable U.S. Government Securities, or (2) a combination of cash in U.S. dollars and non-callable U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereofSecurities, in each case sufficient without reinvestmentsuch amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and of, premium, if any, and interest on such Notes due on the Stated Maturity thereof or outstanding Notes (calculated on the cash interest rate, if applicable) on the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense maturity date of the Company) Notes or on the applicable Redemption Date thereofDate, as the case may be, in accordance with the terms of this Indenture such principal, premium, if any, or interest on such Notes and the NotesIssuers have specified whether such Notes are being defeased to maturity or to a particular Redemption Date;
(bii) in the case of Legal Defeasance, the Company shall Issuers have delivered to the Trustee an Opinion of Counsel satisfactory reasonably acceptable to the Trustee stating that confirming that, subject to customary assumptions and exclusions, (1a) the Company has Issuers have received from, or there has been published by, the United States Internal Revenue Service a ruling or (2b) since the date of this the such Indenture, there has been a change in the applicable United States U.S. federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall Opinion of Counsel will confirm that, subject to customary assumptions and exclusions, the Holders Beneficial Owners of the outstanding Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes purposes, as applicable, as a result of the deposit and such Legal Defeasance to be effected with respect to such Notes and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were had not to occuroccurred;
(ciii) in the case of Covenant Defeasance, the Company shall Issuers have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect that Trustee confirming that, subject to customary assumptions and exclusions, the Holders Beneficial Owners of such the outstanding Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Covenant Defeasance to be effected with respect to such Notes and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were had not to occuroccurred;
(div) no Default or Event of Default with respect to the outstanding Notes shall have has occurred and be is continuing at on the time date of such deposit after giving effect thereto(other than a Default or Event of Default resulting from the borrowing of funds to be applied to make such deposit and the grant of any Lien securing such borrowings);
(ev) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, under any other material agreement or material instrument (other than this Indenture) to which the Company Issuers or any Guarantor is a party or by which the Company Issuers or any Guarantor is bound; and
(gvi) the Company shall Issuers have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form (which Opinion of Counsel may be subject to customary assumptions and substance reasonably acceptable to the Trusteeexclusions), each stating that all conditions precedent with respect provided for or relating to such the Legal Defeasance or the Covenant Defeasance Defeasance, as the case may be, have been complied with. Notwithstanding the foregoingBefore or after a deposit, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under Issuers may make arrangements satisfactory to the Trustee for the giving redemption of notice of redemption by the Trustee such Notes at a future date in the name, and at the expense, of the Company.accordance with Article V.
Appears in 1 contract
Conditions to Defeasance. In order The following shall be the conditions to exercise either Legal Defeasance or Covenant Defeasance with respect application of Section 1302 to the outstanding Notes:
Outstanding Securities of such series: (a1) the Company must shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 609 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to to, the benefits benefit of the Holders of such Notes: Securities, (1A) money in an amount, or (2B) U.S. Government Obligations, Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount amount, or (3C) a combination thereof, in each case sufficient without reinvestmentsufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the entire indebtedness in respect of (i) the principal of (and premium, if 81 1303 72 any, on) and each installment of principal of (and premium, if any, ) and interest on the Outstanding Securities of such Notes series on the Stated Maturity thereof of such principal or installment of principal or interest and (if the Company has made irrevocable arrangements satisfactory ii) any mandatory sinking fund payments or analogous payments applicable to the Trustee for Outstanding Securities of such series on the giving of notice of redemption by the Trustee in the name day on which such payments are due and at the expense of the Company) the Redemption Date thereof, as the case may be, payable in accordance with the terms of this Indenture and the Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amountSecurities. For this purpose, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes "U.S. Government Obligations" means securities that are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due direct obligations of the United States of America for the payment of which its full faith and payable, credit is pledged or (y) will become due obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, for the payment of which its full faith and credit is pledged, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving holder of notice of redemption such depository receipt from any amount received by the Trustee custodian in the name, and at the expense, respect of the CompanyU.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt.
Appears in 1 contract
Sources: Indenture (Anadarko Petroleum Corp)
Conditions to Defeasance. In order to (a) The Issuer may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance its covenant defeasance option, in each case, with respect to the outstanding NotesSecurities only if:
(ai) the Company must Issuer irrevocably have deposits in trust with the Trustee cash in U.S. Dollars, U.S. Government Obligations or a combination thereof in an amount sufficient or U.S. Government Obligations, the principal of and the interest on which will be sufficient, or a combination thereof sufficient, to pay the principal of and premium (if any) and interest on the Securities when due at maturity or redemption, as the case may be, including interest thereon to maturity or such redemption date; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited or caused shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely on or prior to the benefits date of the Holders of such Notes: redemption;
(1ii) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than Issuer delivers to the due date of any payment, money in an amount or (3) Trustee a combination thereof, in each case sufficient without reinvestment, in the opinion of certificate from a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to expressing their opinion that the Trustee payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in form and substance reasonably acceptable to the Trustee, such amounts as will be sufficient to pay and dischargeprincipal, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest when due on such Notes on all the Stated Maturity thereof Securities to maturity or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofredemption, as the case may be; provided that upon any redemption that requires the payment of the Applicable Premium, in accordance with the terms amount deposited shall be sufficient for purposes of this Indenture and to the Notesextent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the date of the redemption;
(biii) 123 days pass after the deposit is made and during the 123-day period no Default specified in Section 6.01(f) or (g) with respect to the Issuer occurs which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any other agreement binding on the Issuer;
(v) in the case of Legal Defeasancethe legal defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling ruling, or (2) since the date of this Indenture, Indenture there has been a change in the applicable United States federal Federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders of the Notes will not recognize income, gain or loss for United States federal Federal income tax purposes as a result of the such deposit and Legal Defeasance to be effected with respect to such Notes defeasance and will be subject to United States federal Federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were defeasance had not to occur;
(c) in the case of Covenant Defeasanceoccurred, the Company shall have delivered to the Trustee an provided that such Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel be required by this clause (bv) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes the Securities not previously theretofore delivered to the Trustee for cancellation (x) have become due and payable, payable or (y) will become due and payable within one year at their Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the CompanyIssuer;
(vi) such exercise does not impair the right of any Holder to receive payment of principal, premium, if any, and interest on such Holder’s Securities on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such Holder’s Securities;
(vii) in the case of the covenant defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; and
(viii) he Issuer delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Securities to be so defeased and discharged as contemplated by this Article 8 have been complied with.
(b) Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of such Securities at a future date in accordance with Article 3.
Appears in 1 contract
Sources: Indenture (Berry Global Group Inc)
Conditions to Defeasance. In order The following shall be the conditions to exercise either Legal Defeasance application of Section 1302 or Covenant Defeasance with respect Section 1303 to the outstanding Notesany Securities or any series of Securities:
(a1) the Company must shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 609 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to to, the benefits benefit of the Holders of such Notes: Securities, (1A) money in an amount, or (2B) U.S. Government Obligations, Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount amount, or (3C) a combination thereof, in each case sufficient without reinvestmentsufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, any premium and interest on such Notes Securities on the respective Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may be, Maturities in accordance with the terms of this Indenture and such Securities. For this purpose, "U.S. Government Obligations" means (x) any security which is (i) a direct obligation of the Notes;
(b) in United States of America for the case payment of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling which its full faith and credit is pledged or (2ii) since an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the date of this Indenture, there has been a change in the applicable United States federal income tax lawof America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (1i) or (2) to ii), is not callable or redeemable at the effect thatoption of the issuer thereof, and based thereon such opinion shall confirm that, the Holders (y) any depository receipt issued by a bank (as defined in Section 3(a)(2) of the Notes will not recognize gain or loss for United States federal income tax purposes Securities Act) as a result of the deposit and Legal Defeasance to be effected custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such Notes and will be subject to United States federal income tax on bank for the same amount, in account of the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders holder of such outstanding Notes will not recognize gain depositary receipt, or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as -------- required by law) such Notes and will be subject custodian is not authorized to United States federal income tax on make any deduction from the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect amount payable to the outstanding Notes shall have occurred and be continuing at the time holder of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause depository receipt from any amount received by the Trustee to have a conflicting interest within the meaning custodian in respect of the Trust Indenture Act (assuming all Notes are in default within U.S. Government Obligation or the meaning specific payment of principal of or interest evidenced by such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companydepository receipt.
Appears in 1 contract
Sources: Indenture (Sprint Capital Corp)
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notes:
(a) the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case of (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect pursuant to the outstanding Notes Section 6.01(7) hereof shall have occurred and be continuing at on the time date of such deposit after giving effect theretoor during the 91-day period thereafter;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Defeasance. In order to (a) Holdings may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance with respect to the outstanding Notesits covenant defeasance option only if:
(ai) the Company must Holdings irrevocably have deposited or caused to be deposited deposits in trust with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount sufficient, or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of U.S. Government Obligations the principal of and premiuminterest on which will be sufficient, if anyor a combination thereof sufficient, to pay the principal of and interest on such the Notes on the Stated Maturity thereof when due at maturity or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofredemption, as the case may be, in accordance with the terms of this Indenture including interest thereon to maturity or such Redemption Date and the NotesSpecial Interest, if any;
(bii) Holdings delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal and interest when due on all the Notes to maturity or redemption, as the case may be;
(iii) the Company shall have delivered to the Trustee an opinion of counsel to the effect that on the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally;
(iv) Holdings delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940;
(v) in the case of Legal Defeasancethe legal defeasance option, the Company Holdings shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company Holdings has received from, or there has been published by, the Internal Revenue Service a ruling ruling, or (2) since the date of this Indenture, Indenture there has been a change in the applicable United States federal Federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders of the Notes will not recognize income, gain or loss for United States federal Federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes defeasance and will be subject to United States federal Federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were defeasance had not to occuroccurred;
(cvi) in the case of Covenant Defeasancethe covenant defeasance option, the Company Holdings shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize income, gain or loss for United States federal Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes covenant defeasance and will be subject to United States federal Federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were covenant defeasance had not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundoccurred; and
(gvii) the Company shall have delivered Holdings delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the TrusteeCounsel, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance the defeasance and discharge of the Notes as contemplated by this ARTICLE 9 have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause .
(b) of this Section 9.02 with respect to Before or after a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payabledeposit, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under Holdings may make arrangements satisfactory to the Trustee for the giving redemption of notice of redemption by the Trustee Notes at a future date in the name, and at the expense, of the Companyaccordance with ARTICLE 3.
Appears in 1 contract
Conditions to Defeasance. In order to (a) The Companies may exercise either Legal Defeasance their legal defeasance option or Covenant Defeasance its covenant defeasance option, in each case, with respect to the outstanding NotesSecurities of a series only if:
(ai) the Company must Companies irrevocably have deposited or caused to be deposited deposit in trust with the Trustee as trust funds cash in trust for the purpose of making the following paymentsU.S. Dollars, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (1) money U.S. Government Obligations or a combination thereof in an amount, amount sufficient or (2) U.S. Government Obligations, the principal of and the interest on which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will providebe sufficient, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteesufficient, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on the Securities of such Notes on the series when due at Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereofredemption, as the case may be, in accordance with including interest thereon to maturity or such Redemption Date; provided that upon any redemption that requires the terms payment of the premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the premium calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the date of the redemption (and any such deficit shall be set forth in a written notice delivered to the Holders and the NotesTrustee at least two (2) Business Days prior to the Redemption Date);
(bii) the Companies deliver to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, premium, if any, and interest when due on all the Securities of such series to Stated Maturity or redemption, as the case may be; provided that upon any redemption that requires the payment of a premium the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the premium calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the date of the redemption (and any such deficit shall be set forth in a written notice delivered to the holders and the Trustee at least two (2) Business Days prior to the Redemption Date);
(iii) 123 days pass after the deposit is made and during the 123-day period no Default specified in Section 6.01(f) or (g) with respect to any Company occurs which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any other agreement binding on the Companies;
(v) in the case of Legal Defeasancethe legal defeasance option, the Company Companies shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has Companies have received from, or there has been published by, the Internal Revenue Service a ruling ruling, or (2) since the date of this Indenture, Indenture there has been a change in the applicable United States federal Federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders of the Notes will not recognize income, gain or loss for United States federal Federal income tax purposes as a result of the such deposit and Legal Defeasance to be effected with respect to such Notes defeasance and will be subject to United States federal Federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were defeasance had not to occur;
(c) in the case of Covenant Defeasanceoccurred, the Company shall have delivered to the Trustee an provided that such Opinion of Counsel to shall not be required by this clause (v) if all the effect that the Holders Securities of such outstanding Notes will series not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously theretofore delivered to the Trustee for cancellation (x) have become due and payable, payable or (y) will become due and payable within one year at their Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the CompanyCompanies;
(vi) such exercise does not impair the right of any Holder to receive payment of principal, premium, if any, and interest on such Holder’s Securities of such series on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such Holder’s Securities of such series;
(vii) in the case of the covenant defeasance option, the Companies shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; and
(viii) the Companies deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Securities of such series to be so defeased and discharged as contemplated by this Article XII have been complied with.
(b) Before or after a deposit, the Companies may make arrangements satisfactory to the Trustee for the redemption of such Securities at a future date in accordance with Article IV.
Appears in 1 contract
Conditions to Defeasance. In order The following shall be the conditions to exercise either Legal Defeasance application of Section 1302 or Covenant Defeasance with respect Section 1303 to the outstanding Notes:
any Securities or any series of Securities: (a1) the Company must shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 609 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to to, the benefits benefit of the Holders of such Notes: Securities, (1A) money in an amount, or (2B) U.S. Government Obligations, Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount amount, or (3C) a combination thereof, in each case sufficient without reinvestmentsufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, any premium and interest on such Notes Securities on the respective Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may be, Maturities in accordance with the terms of this Indenture and such Securities. For this purpose, "U.S. Government Obligations" means (x) any security which is (i) a direct obligation of the Notes;
(b) in United States of America for the case payment of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling which its full faith and credit is pledged or (2ii) since an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the date of this Indenture, there has been a change in the applicable United States federal income tax lawof America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (1i) or (2) to ii), is not callable or redeemable at the effect thatoption of the issuer thereof, and based thereon such opinion shall confirm that, the Holders (y) any depository receipt issued by a bank (as defined in Section 3(a)(2) of the Notes will not recognize gain or loss for United States federal income tax purposes Securities Act) as a result of the deposit and Legal Defeasance to be effected custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such Notes and will be subject to United States federal income tax on bank for the same amount, in account of the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders holder of such outstanding Notes will not recognize gain depositary receipt, or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that -------- (except as required by law) such Notes and will be subject custodian is not authorized to United States federal income tax on make any deduction from the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect amount payable to the outstanding Notes shall have occurred and be continuing at the time holder of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause 65 depository receipt from any amount received by the Trustee to have a conflicting interest within the meaning custodian in respect of the Trust Indenture Act (assuming all Notes are in default within U.S. Government Obligation or the meaning specific payment of principal of or interest evidenced by such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is bound; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companydepository receipt.
Appears in 1 contract
Sources: Indenture (Sprint Corp)
Conditions to Defeasance. In order to (a) The Issuer may exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notesonly if:
(a1) the Company Issuer must irrevocably have deposited or caused to be deposited deposit with the Trustee as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: (1) money Holders, cash in an amountU.S. dollars, U.S. dollar-denominated Government Securities, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient such amounts and with such maturities as will be sufficient, without reinvestmentconsideration of any reinvestment of interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and in form and substance reasonably acceptable to the Trusteeaccountants, investment bank or appraisal firm, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of pay:
(a) the principal of and of, premium, if any, and interest due on such the Notes on the Stated Maturity thereof stated maturity date or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the on a specified Redemption Date thereofDate, as the case may be, in accordance with the terms of this Indenture and the Notes;and
(b) if applicable, interest due on the Notes on any intervening interest payment date, and the Issuer must specify whether such Notes are being defeased to maturity or to a specified Redemption Date.
(2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel satisfactory reasonably acceptable to the Trustee stating that confirming that:
(1a) the Company Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling or ruling, or
(2b) since the date issuance of this Indenturethe Notes, there has been a change in the applicable United States U.S. federal income tax law, in either the case of clause (1a) or (2b) to the effect that, and based thereon such opinion Opinion of Counsel shall confirm that, the Holders beneficial owners of the Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes purposes, as applicable, as a result of the deposit and such Legal Defeasance to be effected with respect to such Notes and will be subject to United States U.S. federal income tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Legal Defeasance were had not to occuroccurred;
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect that Trustee confirming that, the Holders beneficial owners of such outstanding the Notes will not recognize income, gain or loss for United States U.S. federal income tax purposes as a result of the deposit and such Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income such tax on the same amountamounts, in the same manner and at the same times as would be have been the case if such deposit and Covenant Defeasance were had not to occuroccurred;
(d4) no Default or Event (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Default with respect to the outstanding Notes Liens in connection therewith) shall have occurred and be continuing at on the time date of such deposit after giving effect theretodeposit;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default underunder the Revolving Credit Facilities, Term Loan Credit Facilities, the New 9.875% Notes Indenture, the Existing Notes Indentures or any other material agreement agreement, instrument or material instrument documents (other than this Indenture) to which which, the Company Issuer or any Note Guarantor is a party or by which the Company Issuer or any Note Guarantor is bound; bound (other than that resulting from any borrowing of funds to be applied to make the deposit required to effect such Legal Defeasance or Covenant Defeasance and any similar and simultaneous deposit relating to other Indebtedness, and, in each case, the granting of Liens in connection therewith);
(g6) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or any Note Guarantor or others; and
(7) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect provided for or relating to such the Legal Defeasance or the Covenant Defeasance Defeasance, as the case may be, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notes:
(a) the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds Paying Agent in trust for the purpose of making the following paymentspayment, specifically pledged as security for, and dedicated solely to the benefits of benefit of, the Holders of such Notes: (1) money in euro in an amount, or (2) U.S. European Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (3) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants (or, if two or more nationally recognized firms of independent public accountants decline to issue such opinion after the Company has made reasonable efforts to obtain such an opinion, in the opinion of the Company's chief financial officer) expressed in a written certification thereof delivered to the Trustee and Paying Agent and in form and substance reasonably acceptable to the TrusteeTrustee and Paying Agent, to pay and discharge, and which shall be applied by the Trustee and Paying Agent to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and the Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect theretothereto (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Debt) and the granting of any Lien to secure such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such the Trust Indenture Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Company is a party or by which the Company is boundbound (other than a default or event of default under any such other instrument resulting from borrowing funds to be applied to make the deposit under this Indenture in connection with the legal defeasance or covenant defeasance (and any similar concurrent deposit relating to other Debt) and the granting of Liens in connection therewith); and
(g) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable within one year at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Defeasance. In order to The Company may exercise either Legal Defeasance its legal defeasance option or Covenant Defeasance its covenant defeasance option with respect to a series of Securities only if the outstanding Notesfollowing conditions are satisfied:
(a) the Company must has irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits benefit of the Holders of such Notes: series with the Trustee or a Paying Agent or a trustee satisfactory to the Trustee and the Company, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee and any such Paying Agent, (1i) money in an amount, or (2) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or Eligible Obligations sufficient, or (3ii) a combination thereof, U.S. Government Obligations or Eligible Obligations that shall be payable as to principal and interest in each case sufficient without reinvestmentsuch amounts and at such times as are sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and (without consideration of any reinvestment of such interest), or (iii) any combination thereof in form and substance reasonably acceptable to the Trusteean amount sufficient, to pay the principal of, interest on and dischargeany Additional Amounts payable with respect to the outstanding Securities of such series on the dates such installments are due to redemption or Stated Maturity, and which (b) the trustee of the irrevocable trust shall be applied by the Trustee have been irrevocably instructed to pay and discharge, such money or the entire indebtedness in respect proceeds of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof U.S. Government Obligations or (if the Company has made irrevocable arrangements satisfactory Eligible Obligations to the Trustee for the giving of notice of redemption by and (c) the Trustee or Paying Agent shall have been irrevocably instructed in writing to apply the name deposited money and at the expense of the Company) the Redemption Date thereof, as the case may be, proceeds from U.S. Government Obligations or Eligible Obligations in accordance with the terms of this Indenture and the Notesterms of the Securities of such series to the payment of principal of, interest on and any Additional Amounts payable with respect to the Securities of such series;
(b) such deposit described in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel satisfactory to the Trustee stating that clause (1a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (2) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (1) or (2) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes Section 8.2 will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Legal Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Legal Defeasance were not to occur;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;
(d) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto;
(e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default Default under, any material other agreement or material instrument (other than this Indenture) to which the Company is a party or by which it is bound;
(c) no Default or Event of Default shall have occurred and be continuing (i) as of the date of such deposit or (ii) insofar as Sections 6.1(d) and 6.1(e) are concerned at any time during the period ending on the 91st day after the date of such deposit or, if longer, ending on the day following the expiration of the longest preference period applicable to the Company in respect of such deposit (it being understood that the condition in this clause (ii) is bound; anda condition subsequent and shall not be deemed satisfied until the expiration of such period);
(gd) the Company has paid or caused to be paid all sums currently due and payable by the Company hereunder and under the Securities with respect to such series including but not limited to all amounts due under section 7.7;
(e) such defeasance shall have not cause or permit any Securities then listed on any national securities exchange to be delisted;
(f) the Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel in form and substance reasonably acceptable to the TrusteeCounsel, each stating that all conditions precedent with respect provided for herein relating to such Legal Defeasance or Covenant Defeasance the termination by the Company of its obligations as provided in this Section 8.2 have been complied with. Notwithstanding ;
(g) in the foregoingcase of the legal defeasance option, the Opinion of Counsel required by clause (b) of this Section 9.02 with respect to a Legal Defeasance need not to be delivered if all Notes not previously Company has delivered to the Trustee for cancellation either (xi) have become due and payablea ruling received from the Internal Revenue Service to the effect that, or (yii) an Opinion of Counsel by recognized counsel who is not an employee of the Company stating that, since the date first set forth hereinabove, there has been a change in the applicable federal income tax law, and based upon either case (i) or (ii) such Opinion of Counsel shall confirm that, the Holders of the Securities of such series will become due not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its legal defeasance option under this Section 8.2 and payable within one year will be subject to federal income tax on the same amount and in the same manner and at Stated Maturity or are to be called for redemption within one year under arrangements satisfactory the same times as would have been the case if such legal defeasance option had not been exercised; and
(h) in the case of the covenant defeasance option, the Company has delivered to the Trustee either (i) a ruling received from the Internal Revenue Service to the effect that, or (ii) an Opinion of Counsel by recognized counsel who is not an employee of the Company stating that, the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the giving Company's exercise of notice of redemption by its covenant defeasance option under this paragraph and will be subject to federal income tax on the Trustee same amount and in the name, same manner and at the expense, of same times as would have been the Companycase if such covenant defeasance option had not been exercised.
Appears in 1 contract
Sources: Indenture (Kellwood Co)