Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if: (a) all Securities previously authenticated and delivered (other than destroyed, lost or stolen Securities that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereunder; or (i) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, and interest on such Securities to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.
Appears in 5 contracts
Sources: Indenture (RSL Communications LTD), Indenture (RSL Communications LTD), Indenture (RSL Communications LTD)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each (a) This Indenture shall cease to be of further effect with respect to the Securities of a Series (except that all obligations of the Issuer and the Parent Guarantor may terminate its under Section 7.6, the Trustee’s and Paying Agent’s obligations under Section 8.3 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive), and the Trustee, on written demand of the Issuer shall execute instruments acknowledging the satisfaction and discharge of this Indenture with respect to the Securities and this Indenture ifof such Series, when:
(a1) either
(A) all outstanding Securities previously of such Series theretofore authenticated and delivered issued (other than destroyed, lost or stolen Securities that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05paid) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereundercancellation; or
(B) all outstanding Securities of such Series not theretofore delivered to the Trustee for cancellation:
(i) all such Securities mature have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year or all of them year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving the of notice of redemptionredemption by the Trustee in the name, and at the expense, of the Issuer, and, in the case of clause (i), (ii) or (iii) above, the Issuer or the Parent Guarantor has irrevocably deposits in trust deposited or caused to be deposited with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory as funds (immediately available to the TrusteeHolders in the case of clause (i)) in trust for such purpose (x) cash in an amount, or (y) Government Obligations, maturing as trust funds solely for to principal and interest at such times and in such amounts as will ensure the benefit availability of cash in an amount or (z) a combination thereof which will be sufficient, in the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient opinion (in the opinion case of (y) or (z)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay and discharge the entire indebtedness on the Securities of such Series for principal and interest to the date of such deposit (in the case of Securities which have become due and payable) or for principal, premium, if any, and interest on to the Stated Maturity or redemption date, as the case may be; or
(C) the Issuer or the Parent Guarantor has properly fulfilled such other means of satisfaction and discharge, as contemplated by Section 2.2 to be applicable to the Securities of such Series;
(2) the Issuer or the Parent Guarantor has paid or caused to maturity be paid all other sums payable by it hereunder with respect to the Securities of such Series; and
(3) the Issuer or redemptionthe Parent Guarantor, as the case may be, has delivered to the Trustee an Officer’s Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture with respect to the Securities of such Series have been complied with, together with an Opinion of Counsel to the same effect.
(b) Unless this Section 8.1(b) is specified as not being applicable to Securities of a Series as contemplated by Section 2.2, each of the Issuer and the Parent Guarantor may terminate certain of its obligations under this Indenture (“covenant defeasance”) with respect to the Securities of a Series if:
(1) either the Issuer or the Parent Guarantor has irrevocably deposited or caused 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 the benefit of the Holders of Securities of such Series, (i) money, or (ii) Government Obligations with respect to such Series, maturing as to principal and interest at such times and in such amounts as will ensure the availability of money in the currency in which payment of the Securities of such Series is to be made in an amount or (iii) a combination thereof, that is sufficient, in the opinion (in the case of (ii) and (iii)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal of and premium (if any) and interest on all Securities of such Series on each date that such principal, premium (if any) or interest is due and payable and (at the Stated Maturity thereof or upon redemption as provided in Section 8.1(e)) to pay all other sums payable by it hereunder; provided that the Trustee shall have been irrevocably instructed to apply such money and/or the proceeds of such Government Obligations to the payment of said principal, premium (iiiif any) and interest with respect to the Securities of such Series as the same shall become due;
(2) the Issuer or the Parent Guarantor, as the case may be, has delivered to the Trustee an Officer’s Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture with respect to the Securities of such Series have been complied with, and an Opinion of Counsel to the same effect;
(3) no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit, deposit (iv) 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);
(4) the Issuer or the Parent Guarantor, as the case may be, shall have delivered to the Trustee an Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee or a tax ruling to the effect that the Holders will not result in a breach recognize income, gain or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted loss for Federal income tax purposes as a result of such deposit, defeasance Issuer or Parent Guarantor’s exercise of its option under this Section 8.1(b) and discharge, 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 option had not been exercised; and
(vi5) the Issuer and the Parent Guarantor have complied with any additional conditions specified pursuant to Section 2.2 to be applicable to the discharge of Securities of such Series pursuant to this Section 8.1. In such event, this Indenture shall cease to be of further effect (except as set forth in this paragraph), and the Trustee, on written demand of the Issuer or the Parent Guarantor, as the case may be, shall execute instruments acknowledging satisfaction and discharge under this Indenture. However, the Issuer’s obligations in Sections 2.4, 2.5, 2.6, 2.7, 2.8, 4.1, 5.1, 7.6 and 7.7, the Parent Guarantor’s obligations in Section 5.1 and 7.6, the Trustee’s and Paying Agent’s obligations in Section 8.3 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive until all Securities of such Series are no longer outstanding. Thereafter, only the obligations of the Issuer and the Parent Guarantor in Section 7.6 and the Trustee’s and Paying Agent’s obligations in Section 8.3 shall survive with respect to Securities of such Series. In order to have money available on a payment date to pay principal of or premium (if any) or interest on the Securities, the Government Obligations shall be payable as to principal or interest on or before such payment date in such amounts as will provide the necessary money. Government Obligations shall not be callable at the Issuer’s option.
(c) If the Issuer or the Parent Guarantor, as the case may be, has previously complied or is concurrently complying with the conditions set forth in Section 8.1(b) (other than any additional conditions specified pursuant to Section 2.2 that are expressly applicable only to covenant defeasance) with respect to Securities of a Series, then unless this Section 8.1(c) is specified as not being applicable to Securities of such Series as contemplated by Section 2.2, each of the Issuer and the Parent Guarantor may elect to be discharged (“legal defeasance”) from its obligations to make payments with respect to Securities of such Series, if:
(1) unless otherwise specified with respect to Securities of such Series as contemplated by Section 2.2, the Issuer or the Parent Guarantor, as the case may be, has delivered to the Trustee an Officers' Certificate Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee to the effect referred to in Section 8.1(b)(4) with respect to such legal defeasance, which opinion is based on (i) a private ruling of the Internal Revenue Service addressed to the Issuer or the Parent Guarantor, as the case may be, (ii) a published ruling of the Internal Revenue Service or (iii) a change in the applicable federal income tax law (including regulations) after the date of this Indenture; the Issuer or the Parent Guarantor, as the case may be, has complied with any other conditions specified pursuant to Section 2.2 to be applicable to the legal defeasance of Securities of such Series pursuant to this Section 8.1(c); and
(2) the Issuer or the Parent Guarantor, as the case may be, has delivered to the Trustee a Company Request requesting such legal defeasance of the Securities of such Series and an Opinion of Counsel, in each case Officer’s Certificate stating that all conditions precedent provided for herein relating with respect to such legal defeasance of the satisfaction and discharge Securities of this Indenture such Series have been complied with, together with an Opinion of Counsel to the same effect. With In such event, each of the Issuer and the Parent Guarantor will be discharged from its obligations under this Indenture and the Securities of such Series to pay principal of and premium (if any) and interest on Securities of such Series, the Issuer’s obligations under Sections 4.1 and 5.1 and the Parent Guarantor’s obligations under Section 5.1 shall terminate with respect to such Securities, and the entire indebtedness of the Issuer evidenced by such Securities shall be deemed paid and discharged.
(d) If and to the extent additional or alternative means of satisfaction, discharge or defeasance of Securities of a Series are specified to be applicable to such Series as contemplated by Section 2.2, each of the Issuer and the Parent Guarantor may terminate any or all of its obligations under this Indenture with respect to the foregoing clause Securities of a Series and any or all of its obligations under the Securities of such Series if it fulfills such other means of satisfaction and discharge as may be so specified, as contemplated by Section 2.2, to be applicable to the Securities of such Series.
(e) If Securities of any Series subject to subsections (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations (c) or (d) of this Section 8.1 are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured accordance with any mandatory or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable depositoptional sinking fund provisions, the terms of the applicable trust arrangement shall provide for such redemption, and the Issuer shall make such arrangements as are reasonably satisfactory to the Trustee upon written request shall acknowledge for the giving of notice of redemption in writing the discharge name, and at the expense, of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.
Appears in 4 contracts
Sources: Indenture (Celanese Americas LLC), Indenture (Celanese Global Relocation LLC), Indenture (Celanese Global Relocation LLC)
Termination of Issuer’s Obligations. Except This Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a) either (i) all Securities previously the Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereunder; or
cancellation or (iii) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving the of a notice of redemption, (ii) redemption or otherwise and the Issuer or any Subsidiary Guarantor has irrevocably deposits in trust deposited or caused to be irrevocably deposited with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds in trust solely for the benefit of the Holders of such Securities for that purpose, money or cash in U.S. dollars, U.S. Government Obligations Obligations, or a combination thereof, in such 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), without consideration of any reinvestment of any interest thereoninterest, to pay principaland discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption together with irrevocable instructions from the Issuer directing the Trustee to apply such Securities funds to the payment thereof at maturity or redemption, as the case may be, and to pay ; (b) the Issuer has paid all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which by the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, Issuer; and (vic) the Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case Counsel stating that all conditions precedent provided for herein under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. With ; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer.
(1) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due, (2) the Issuer’s obligations with respect to the foregoing Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (3) the rights, powers, trust, duties and immunities of the Trustee and the Issuer’s obligations in connection therewith and (4) the Legal Defeasance provisions of this Section 8.1. In addition, the Issuer may, at its option and at any time, elect to terminate its obligations with respect to covenants contained in Sections 4.4, 4.5, 4.8 and 4.10 through 4.20 and Article V and the operation of clauses (6), (7) (with respect to Significant Subsidiaries), (8) and (9) of Section 6.1 and the limitations described in clause (a), 3) of the Issuer's first paragraph of Section 5.1 (“Covenant Defeasance”) and thereafter any omission to comply with such obligations under Section 6.07 shall survive. With not constitute a Default or Event of Default with respect to the foregoing Notes. The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. In the event of Legal Defeasance, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. In the event of Covenant Defeasance, payment of the Notes may not be accelerated because of an Event of Default specified in clause (b4), the Issuer's obligations in Sections 3.03(5), 3.04(6), 3.05(7) (with respect to Significant Subsidiaries), 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured (8) or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge (9) of Section 6.1 or because of the Issuer's obligations under failure of the Securities Issuer to comply with clause (3) of the first paragraph of Section 5.1. In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in United States dollars, non-callable U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, interest and this IndentureLiquidated Damages, and if any, on the Guarantor's obligations under Notes on the Guarantee and this Indenturestated date for payment thereof or on the applicable Redemption Date, except for those surviving obligations specified above.as the case may be;
Appears in 3 contracts
Sources: Indenture (Chaparral Energy, Inc.), Indenture (Chaparral Energy, Inc.), Indenture (Chaparral Energy, Inc.)
Termination of Issuer’s Obligations. Except This Indenture, the Guarantees and the Security Documents will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a) either (i) all Securities previously Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities that destroyed Notes which have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuers and thereafter repaid to the Issuer, as provided in Section 12.05Issuers or discharged from such trust) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereunder; or
cancellation or (iii) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory Notes not theretofore delivered to the Trustee for giving cancellation have become due and payable and the notice of redemption, (ii) the Issuer Issuers have irrevocably deposits in trust deposited or caused to be deposited with the Trustee during such one-year period, under funds in an amount sufficient to pay and discharge the terms of an irrevocable trust agreement in form satisfactory to entire Indebtedness on the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof Notes not theretofore delivered to the Trustee)Trustee for cancellation, without consideration of any reinvestment of any interest thereon, to pay principalfor principal of, premium, if any, and interest on the Notes to the date of deposit together with irrevocable written instructions in the form of an Officers' Certificate from the Issuers directing the Trustee to apply such Securities funds to the payment thereof at maturity or redemption, as the case may be, and to pay ; (b) the Issuers have paid all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which by the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, Issuers; and (vic) the Issuer has Issuers have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case Counsel stating that all conditions precedent provided for herein under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. With respect ; provided, however, that such counsel may rely, as to the foregoing clause (a)matters of fact, the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured on a certificate or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge certificates of officers of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified aboveIssuers.
Appears in 2 contracts
Sources: Indenture (Canadian Abraxas Petroleum LTD), Indenture (Canadian Abraxas Petroleum LTD)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.018.01, each of the Issuer and the Guarantor may terminate its and the Guarantors’ obligations under the Securities and this Indenture and the Notes if:
(1) either:
(a) all Securities previously the Notes theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation cancellation; or
(b) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable, and the Issuer has paid all sums payable by it hereunder; or
(i) all such Securities mature within one year irrevocably deposited or all of them are caused to be called for redemption within one year under arrangements satisfactory deposited with the Trustee funds in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for giving the notice of redemptioncancellation, (ii) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principalprincipal of, premium, if any, interest and interest Additional Interest, if any, on such Securities the Notes to the date of maturity or redemption, as the case may be, and together with irrevocable instructions from the Issuer directing the Trustee to pay apply such funds to the payment thereof at maturity or redemption, as the case may be;
(2) the Issuer has paid all other sums payable under this Indenture by it hereunderthe Issuer; and
(3) the Issuer, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date upon request for written acknowledgment of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance satisfaction and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case Counsel stating that all conditions precedent provided for herein under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a1), the Issuer's ’s and the Guarantors’ obligations under Section 6.07 Sections 7.07 and 14.08 shall survivesurvive such satisfaction and discharge. With respect to the foregoing clause (b2), the Issuer's ’s and the Guarantors’ obligations in Sections 3.032.04, 3.042.05, 3.052.06, 3.062.07, 3.072.08, 10.012.10, 10.092.13, 6.074.01, 6.104.02, 6.114.13, 12.047.07, 12.05 7.08, 8.05, 8.06 and 12.06 14.08 shall survive until the Securities have matured or have been redeemedNotes are no longer outstanding. Thereafter, only the Issuer's ’s and the Guarantors’ obligations in Sections 6.077.07, 12.05 8.05, 8.06 and 12.06 14.08 shall survive. After any such irrevocable deposit, the Trustee upon written request of the Issuer shall acknowledge in writing the discharge of the Issuer's ’s and the Guarantors’ obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee Notes and this Indenture, except for those surviving obligations specified above.
Appears in 2 contracts
Sources: Indenture (Manitowoc Foodservice, Inc.), Indenture (Manitowoc Co Inc)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each This Indenture shall cease to be of further effect (except that the Issuer Issuers' and the Guarantor may terminate its Subsidiary Guarantors' obligations under Section 7.7 and 8.4 and the Securities Issuers' Trustee's and this Indenture if:
(aPaying Agent's obligations under Section 8.3 shall survive) when all Securities previously outstanding Notes theretofore authenticated and issued have been delivered (other than destroyed, lost or stolen Securities that Notes which have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05paid) have been delivered to the Trustee for cancelation cancellation and the Issuer has Issuers have paid all sums payable by it the Issuers hereunder; or. In addition, the Issuers may terminate all of their obligations under this Indenture if:
(i) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii1) the Issuer Issuers irrevocably deposits deposit in trust with the Trustee during such one-year periodor at the option of the Trustee, with a trustee reasonably satisfactory to the Trustee and the Issuers under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. United States Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, principal and interest on such Securities the Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it them hereunder, provided that (iiii) the trustee of the irrevocable trust shall have been irrevocably instructed to pay such money or the proceeds of such United States Government Obligations to the Trustee and (ii) the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such United States Government Obligations to the payment of said principal and interest with respect to the Notes; and
(2) no Event of Default or event (including such deposit) which, with notice or lapse of time, or both, would become an Event of Default with respect to the Securities Notes shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under. Then, this Indenture or any other agreement or instrument shall cease to which be of further effect (except as provided in this paragraph), and the Guarantor or Trustee, on demand of the Issuer is a party or by which it is boundIssuers, (v) shall execute proper instruments acknowledging confirmation of and discharge under this Indenture. The Issuers may make the deposit only if at Article 10 hereof does not prohibit such time the Securities are listed on a national securities exchangepayment. However, the Securities will not be delisted as a result of such depositIssuers' obligations in Section 2.3, defeasance 2.4, 2.5, 2.6, 2.7, 4.1, 7.7, 7.8, 8.3 and discharge8.4, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate Trustee's and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the IssuerPaying Agent's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 Section 8.3 shall survive until the Securities have matured or have been redeemedNotes are no longer outstanding. Thereafter, only the IssuerIssuers', Trustee's and Paying Agents' obligations in Sections 6.07, 12.05 and 12.06 Section 8.3 shall survive. After any such irrevocable depositdeposit made pursuant to this Section 8.1 and satisfaction of the other conditions set forth herein, the Trustee upon written request of the Issuer shall acknowledge in writing the discharge of the Issuer's Issuers' and the Subsidiary Guarantors' obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above. In order to have money available on a payment date to pay principal or interest on the Notes, the United States Government Obligations shall be payable as to principal or interest at least one Business Day before such payment date in such amounts as will provide the necessary money. United States Government Obligations shall not be callable at the Issuers' options. The Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the United States Government Obligations deposited pursuant to this Section 8.1 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Notes."
Appears in 2 contracts
Sources: Second Supplemental Indenture (Foamex International Inc), Third Supplemental Indenture (Foamex International Inc)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.018.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities Notes and this Indenture if:
(ai) all Securities Notes previously authenticated and delivered (other than destroyed, lost or stolen Securities Notes that have been replaced or Securities Notes that are paid pursuant to Section 4.01 or Notes for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.058.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid all sums payable by it hereunder; or
(iA) all such Securities the Notes mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (iiB) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if if, any, and interest on such Securities the Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iiiC) no Default or Event of Default with respect to the Securities Notes shall have occurred and be continuing on the date of such deposit, (ivD) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.bound and
Appears in 2 contracts
Sources: Indenture (Multicare Companies Inc), Indenture (Genesis Eldercare Acquisition Corp)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each This Indenture shall cease to be of further effect (except that the Issuer Issuer's and the Guarantor may terminate its Subsidiary Guarantors' obligations under Section 7.07 and 10.04 and the Securities Issuer's, Trustee's and this Indenture if:
(aPaying Agent's obligations under Section 10.03 shall survive) when all Securities previously outstanding Notes theretofore authenticated and issued have been delivered (other than destroyed, lost or stolen Securities Notes that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05paid) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid all sums payable by it the Issuer hereunder; or. In addition, the Issuer may terminate all of its obligations under this Indenture if:
(i) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii1) the Issuer irrevocably deposits in trust with the Trustee during such one-year periodor at the option of the Trustee, with a trustee reasonably satisfactory to the Trustee and the Issuer under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. United States Government Obligations sufficient (in the opinion of a nationally recognized firm of as certified by an independent public accountants expressed in a written certification thereof delivered to accountant designated by the Trustee), without consideration of any reinvestment of any interest thereon, Issuer) to pay principal, premium, if any, principal and interest on such Securities the Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it them hereunder, provided that (iiii) the trustee of the irrevocable trust shall have been irrevocably instructed to pay such money or the proceeds of such United States Government Obligations to the Trustee and (ii) the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such United States Government Obligations to the payment of said principal and interest with respect to the Notes;
(2) the Issuer and the Subsidiary Guarantors deliver to the Trustee an Officers' Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture have been complied with, and an Opinion of Counsel to the same effect; and
(3) no Event of Default or event (including such deposit) which, with notice or lapse of time, or both, would become an Event of Default with respect to the Securities Notes shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under. Then, this Indenture or any other agreement or instrument shall cease to which the Guarantor or the Issuer is a party or by which it is bound, be of further effect (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted except as a result of such deposit, defeasance and dischargeprovided this paragraph), and (vi) the Issuer has delivered to Trustee, on demand of the Trustee an Officers' Certificate and an Opinion Issuer, shall execute proper instruments acknowledging confirmation of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of under this Indenture have been complied withIndenture. With respect to The Issuer may make the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survivedeposit only if Article 10 hereof does not prohibit such payment. With respect to the foregoing clause (b)However, the Issuer's obligations in Sections 3.032.03, 3.042.04, 3.052.05, 3.062.06, 3.072.07, 10.014.01, 10.097.07, 6.077.08, 6.1010.03 and 10.04, 6.11, 12.04, 12.05 and 12.06 the Trustee's and Paying Agent's obligations in Section 10.03 shall survive until the Securities have matured or have been redeemedNotes are no longer outstanding. Thereafter, only the Issuer's, Trustee's and Paying Agents' obligations in Sections 6.07, 12.05 and 12.06 Section 10.03 shall survive. After any such irrevocable depositdeposit made pursuant to this Section 10.01 and satisfaction of the other conditions set forth herein, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's and the Subsidiary Guarantors' obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above. In order to have money available on a payment date to pay principal or interest on the Notes, the United States Government Obligations shall be payable as to principal or interest at least one Business Day before such payment date in such amounts as will provide the necessary money. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the United States Government Obligations deposited pursuant to this Section 10.01 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Notes.
Appears in 1 contract
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01Subject to the provisions of Article Eight, each the Company may terminate its substantive obligations and the substantive obligations of the other Issuer and the Guarantor may terminate its obligations under Guarantors in respect of the Securities and this Indenture if:
(a) by delivering all outstanding Securities previously authenticated and delivered (other than destroyed, lost or stolen Securities that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid paying all sums payable by it hereunder; or
(i) all such Securities mature within one year or all the Issuers on account of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principalprincipal of, premium, if any, and interest on such Securities all Securities. In addition, subject to maturity or redemptionthe provisions of Article Eight with respect to the creation of the defeasance trust provided for in the following clause (i), as the case may beCompany may, and to pay all other sums payable by it hereunder, (iii) provided that no Default or Event of Default with has occurred and is continuing or would arise therefrom and provided that no default under any Senior Debt would arise therefrom and, so long as any Obligations or commitments under the Credit Agreement shall be outstanding, the Agent under the Credit Agreement shall have consented thereto in writing, terminate all of its substantive obligations and all of the substantive obligations of the other Issuers and the Guarantors in respect to of the Securities shall have occurred (including the Issuers’ obligations to pay the principal of (and be continuing premium, if any, on) and interest on the date Securities and the Guarantors’ Guarantee thereof) by (i) depositing with the Trustee, under the terms of such depositan irrevocable trust agreement, money which is sufficient or direct non-callable obligations of the United States of America for the payment of which the full faith and credit of the United States is pledged (iv“United States Government Obligations”) such deposit will not result in a breach or violation ofthe principal of and interest on which is sufficient (without reinvestment), or constitute a default undercombination thereof sufficient, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time pay all remaining indebtedness on the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (viii) the Issuer has delivered delivering to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in Counsel each case stating that there has been compliance with all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied withherein. With respect to Notwithstanding the foregoing clause (a)paragraph, the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's Issuers’ obligations in Sections 3.032.03, 3.042.05, 3.052.06, 3.062.07, 3.074.01 (but not with respect to termination of substantive obligations pursuant to the third sentence of the foregoing paragraph), 10.014.02, 10.097.07, 6.077.08, 6.10, 6.11, 12.04, 12.05 9.03 and 12.06 9.04 shall survive until the Securities have matured or have been redeemedare no longer outstanding. Thereafter, only Thereafter the Issuer's Issuers’ obligations in Sections 6.077.07, 12.05 9.03 and 12.06 9.04 shall survive. After any such delivery or irrevocable depositdeposit and delivery of an Officers’ Certificate and Opinion of Counsel, the Trustee upon written request a Company Request shall acknowledge in writing the discharge of the Issuer's Issuers’ and the Guarantors’ obligations under the Securities Securities, the Guarantees and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above.
Appears in 1 contract
Termination of Issuer’s Obligations. Except This Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a) either (i) all Securities previously the Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation cancellation or (ii) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving of a notice of redemption or otherwise and the Issuer or any Subsidiary Guarantor has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust solely for such purpose, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be; (b) the Issuer has paid all other sums payable under this Indenture by it hereunderthe Issuer; or
and (ic) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory the Issuer has delivered to the Trustee for giving an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the notice satisfaction and discharge of redemptionthis Indenture have been complied with; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer.
(1) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due, (ii2) the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (3) the rights, powers, trust, duties and immunities of the Trustee and the Issuer’s obligations in connection therewith and (4) the Legal Defeasance provisions of this Section 8.1. In addition, the Issuer may, at its option and at any time, elect to terminate its obligations with respect to covenants contained in Sections 4.4, 4.5, 4.8 and 4.10 through 4.20 and Article V and the operation of clauses (6), (7) (with respect to Significant Subsidiaries), (8) and (9) of Section 6.1 and the limitations described in clause (3) of the first paragraph of Section 5.1 (“Covenant Defeasance”) and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Notes. The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. In the event of Legal Defeasance, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. In the event of Covenant Defeasance, payment of the Notes may not be accelerated because of an Event of Default specified in clause (4), (5), (6), (7) (with respect to only to Significant Subsidiaries), (8) or (9) of Section 6.1 or because of the failure of the Issuer to comply with clause (3) of the first paragraph of Section 5.1. In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposits in trust deposit with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely in trust, for the benefit of the Holders of such Securities for that purposecash in United States dollars, money or non-callable U.S. Government Obligations sufficient (Obligations, or a combination thereof, in such 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), without consideration of any reinvestment of any interest thereonaccountants, to pay principalthe principal of, premium, if any, and interest on such Securities to maturity the Notes on the stated date for payment thereof or redemptionon the applicable Redemption Date, as the case may be;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trus- tee confirming that (a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to pay all other sums payable by it hereunderfederal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(iii3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant 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 Covenant Defeasance had not occurred;
(4) no Default or Event of Default with respect Default, of which the Trustee is deemed to the Securities have notice, shall have occurred and be continuing on the date of such deposit or insofar as Events of Default under Section 6.1(7) or (8) from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit, ;
(iv5) such deposit will Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which the Guarantor Issuer or the Issuer any of its Restricted Subsidiaries is a party or by which it the Issuer or any of its Restricted Subsidiaries is bound, ;
(v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi6) the Issuer has shall 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 over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or any Guranantor or others;
(7) the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein or relating to the satisfaction and discharge of this Indenture Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with. With respect ; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer; and
(8) the Issuer shall have delivered to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect Trustee an Opinion of Counsel to the foregoing clause (b), effect that after the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until 91st day following the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing trust funds will not be subject to the discharge effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (Chaparral Energy, Inc.)
Termination of Issuer’s Obligations. Except This Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a) either (i) all Securities previously the Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereunder; or
cancellation or (iii) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving the of a notice of redemption, (ii) redemption or otherwise and the Issuer or any Subsidiary Guarantor has irrevocably deposits in trust deposited or caused to be irrevocably deposited with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds in trust solely for the benefit of the Holders of such Securities for that purpose, money or cash in U.S. dollars, U.S. Government Obligations Obligations, or a combination thereof, in such 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), without consideration of any reinvestment of any interest thereoninterest, to pay principaland discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption together with irrevocable instructions from the Issuer directing the Trustee to apply such Securities funds to the payment thereof at maturity or redemption, as the case may be, and to pay ; (b) the Issuer has paid all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which by the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, Issuer; and (vic) the Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case Counsel stating that all conditions precedent provided for herein under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer. With The Issuer may, at its option and at any time, elect to have its obligations and the corresponding obligations of the Subsidiary Guarantors discharged with respect to the foregoing clause outstanding Notes and Subsidiary Guarantees (a“Legal Defeasance”). Such Legal Defeasance
(1) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due, (2) the Issuer's ’s obligations under Section 6.07 shall survive. With with respect to the foregoing Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (3) the rights, powers, trust, duties and immunities of the Trustee and the Issuer’s obligations in connection therewith and (4) the Legal Defeasance provisions of this Section 8.1. In addition, the Issuer may, at its option and at any time, elect to terminate its obligations with respect to covenants contained in Sections 4.4, 4.5, 4.8 and 4.10 through 4.20 and Article V and the operation of clauses (6), (7) (with respect to Significant Subsidiaries), (8) and (9) of Section 6.1 and the limitations described in clause (b3) of the first paragraph of Section 5.1 (“Covenant Defeasance”) and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Notes. The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. In the event of Legal Defeasance, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. In the event of Covenant Defeasance, payment of the Notes may not be accelerated because of an Event of Default specified in clause (4), the Issuer's obligations in Sections 3.03(5), 3.04(6), 3.05(7) (with respect to only to Significant Subsidiaries), 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured (8) or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge (9) of Section 6.1 or because of the Issuer's obligations under failure of the Securities and this IndentureIssuer to comply with clause (3) of the first paragraph of Section 5.1. In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in United States dollars, non-callable U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the Guarantor's obligations under Notes on the Guarantee and this Indenturestated date for payment thereof or on the applicable Redemption Date, except for those surviving obligations specified above.as the case may be;
Appears in 1 contract
Sources: Indenture (Chaparral Energy, Inc.)
Termination of Issuer’s Obligations. Except This Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a) either (i) all Securities previously Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities that destroyed Notes which have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation cancellation or (ii) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable and the Issuer has paid all sums payable by it hereunder; or
(i) all such Securities mature within one year irrevocably deposited or all of them are caused to be called for redemption within one year under arrangements satisfactory deposited with the Trustee funds in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for giving the notice of redemptioncancellation, (ii) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principalprincipal of, premium, if any, and interest on the Notes to the date of deposit together with irrevocable instructions from the Issuer directing the Trustee to apply such Securities funds to the payment thereof at maturity or redemption, as the case may be, and to pay ; (b) the Issuer has paid all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which by the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, Issuer; and (vic) the Issuer has delivered to the Trustee an Officersofficers' Certificate certificate and an Opinion opinion of Counsel, in each case counsel stating that all conditions precedent provided for herein under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. With respect ; provided, however, that such counsel may rely, as to the foregoing clause (a)matters of fact, the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured on a certificate or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge certificates of officers of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (Mobile Field Office Co)
Termination of Issuer’s Obligations. Except Unless pursuant to Section 3.01 provision is made for the inapplicability of all or part of this Article 4, and except as otherwise provided in this Section 12.014.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities of a particular series and this Indenture if:
(a) all Securities of such series previously authenticated and delivered (other than destroyed, lost or stolen Securities of such series that have been replaced or Securities of such series that are paid pursuant to Section 10.01 or Securities of such series for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.054.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid all sums payable by it hereunderhereunder other than those that could become payable under Sections 4.06 or 6.07; or
(b) (i) all such the Securities series mature within one year [ _____ ] or all of them are to be called for redemption within one year [ _____ ] under arrangements reasonably satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably deposits in trust with the Trustee during such one-year [ _____ ] period, under the terms of an irrevocable trust agreement in form and substance reasonably satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations Securities sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if if, any, and interest on the Securities of such Securities series to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunderhereunder other than those that could become payable under Sections 4.06 or 6.07, (iii) no Default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor Issuer or the Issuer any of its Subsidiaries is a party or by which it the Issuer or any of its Subsidiaries is bound, bound and (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture set forth herein have been complied with. With respect to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in under Sections 3.02, 3.03, 3.04, 3.05, 3.06, 3.07, 10.013.13, 10.094.04, 6.074.05, 4.06, 6.10, 6.11, 12.04, 12.05 10.01 and 12.06 10.02 hereof shall survive until the Securities have matured or have been redeemedare no longer Outstanding. Thereafter, only the Issuer's obligations in provisions of Sections 6.074.05, 12.05 4.06 and 12.06 6.07 hereof shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities of such series and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above.
Appears in 1 contract
Sources: Senior Debt Indenture (Caprock Communications Corp)
Termination of Issuer’s Obligations. Except This Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a) either (i) all Securities previously the Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereunder; or
cancellation or (iii) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving the of a notice of redemption, (ii) redemption or otherwise and the Issuer or any Subsidiary Guarantor has irrevocably deposits in trust deposited or caused to be irrevocably deposited with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds in trust solely for the benefit of the Holders of such Securities for that purpose, money or cash in U.S. dollars, U.S. Government Obligations Obligations, or a combination thereof, in such amounts as will be sufficient (in the opinion of a nationally recognized investment banking firm, appraisal firm or firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereoninterest, to pay principaland discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption together with irrevocable instructions from the Issuer directing the Trustee to apply such Securities funds to the payment thereof at maturity or redemption, as the case may be, and to pay ; (b) the Issuer has paid all other sums payable under this Indenture by it hereunderthe Issuer; and (c) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer.
(1) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due, (iii2) no the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (3) the rights, powers, trust, duties and immunities of the Trustee under this Indenture and the Issuer’s and the Subsidiary Guarantors’ obligations in connection therewith and (4) the Legal Defeasance provisions of this Section 8.1. In addition, the Issuer may, at its option and at any time, elect to terminate its obligations with respect to covenants contained in Sections 4.4, 4.5, 4.8 and 4.10 through 4.20 and the operation of clauses (6), (7) (with respect to Significant Subsidiaries), (8) and (9) of Section 6.1 and the limitations described in clause (3) of the first paragraph of Section 5.1 (“Covenant Defeasance”) and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Securities Notes. The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. In the event of Legal Defeasance, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. In the event of Covenant Defeasance, payment of the Notes may not be accelerated because of an Event of Default specified in clause (4), (5), (6), (7) (with respect to Significant Subsidiaries), (8) or (9) of Section 6.1 or because of the failure of the Issuer to comply with clause (3) of the first paragraph of Section 5.1. In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in United States dollars, non-callable U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment banking firm, appraisal firm or firm of independent public accountants, without consideration of any reinvestment of interest, to pay the principal of, premium, if any, and interest, if any, on the Notes on the stated date for payment thereof or on the applicable Redemption Date, as the case may be;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal 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 Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the beneficial owners of the 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;
(4) no Default or Event of Default, of which the Trustee is deemed to have notice, shall have occurred and be continuing on the date of such deposit or insofar as Events of Default under Section 6.1(7) from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit, ;
(iv5) such deposit will Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which the Guarantor Issuer or the Issuer any of its Restricted Subsidiaries is a party or by which it the Issuer or any of its Restricted Subsidiaries is bound, ;
(v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi6) the Issuer shall have delivered to the Trustee (x) an Officers’ Certificate stating that no Default or Event of Default has occurred and is continuing and that the deposit was not made by the Issuer with the intent of preferring the Holders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer;
(7) the Issuer shall have delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein or relating to the satisfaction and discharge of this Indenture Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with. With respect ; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer; and
(8) the Issuer shall have delivered to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect Trustee an Opinion of Counsel to the foregoing clause (b), effect that after the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until 91st day following the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing trust funds will not be subject to the discharge effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (Chaparral Energy, Inc.)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
(a) This Indenture and the other Note Documents will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Indenture) as to all Securities previously outstanding Notes, and all Note Liens will be released, when (a) either (i) all the Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereunder; or
cancellation or (iii) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving the of a notice of redemption, (ii) redemption or otherwise and the Issuer or any Guarantor has irrevocably deposits in trust deposited or caused to be irrevocably deposited with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds in trust solely for the benefit of the Holders of such Securities for that purpose, money or cash in U.S. dollars, U.S. Government Obligations Obligations, or a combination thereof, in such 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), without consideration of any reinvestment of any interest thereoninterest, to pay principaland discharge the Note Obligations with respect to the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption together with irrevocable instructions from the Issuer directing the Trustee to apply such Securities funds to the payment thereof at maturity or redemption, as the case may be, and to pay ; (b) the Issuer has paid all other sums payable under the Note Obligations by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, Issuer; and (vic) the Issuer has delivered to the Trustee an Officers' Officer’s Certificate and an Opinion of Counsel, in each case Counsel stating that all conditions precedent provided for herein under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. With ; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer.
(b) The Issuer may, at its option and at any time, elect to have its obligations and the corresponding Obligations of the Guarantors discharged with respect to the foregoing clause Note Obligations and cause the release of all Note Liens (a“Legal Defeasance”). Such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the Note Obligations which are represented by the outstanding Notes, the Issuer's obligations under Section 6.07 shall survive. With and satisfied all of its Obligations with respect to the foregoing Notes, except for:
(1) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due, (2) the Issuer’s Obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (3) the rights, powers, trust, duties and immunities of the Trustee and the Issuer’s Obligations in connection therewith and (4) the Legal Defeasance provisions of this Section 8.1. In addition, the Issuer may, at its option and at any time, elect to terminate its Note Obligations and cause the release of all Note Liens with respect to covenants contained in Sections 4.8, and 4.10 through 4.20 and Article V and the operation of clauses (6), (7) (with respect to Significant Subsidiaries), (8), (9) and (10) of Section 6.1 and the limitations described in clauses (2), (3) and (4) of Section 5.1(a) and Section 5.1(c) (“Covenant Defeasance”) and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Notes. The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. In the event of Legal Defeasance, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. In the event of Covenant Defeasance, payment of the Notes may not be accelerated because of an Event of Default specified in clause (b4), the Issuer's obligations in Sections 3.03(5), 3.04(6), 3.05(7) (with respect to Significant Subsidiaries), 3.06(8), 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured (9) or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge (10) of Section 6.1 or because of the Issuer's obligations under failure of the Securities Issuer to comply with clauses (2), (3) and this Indenture(4) of Section 5.1(a) and Section 5.1(c).
(c) If the Issuer exercises its Legal Defeasance option or its Covenant Defeasance option, each Guarantor will also be released from all of its Note obligations. In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in United States dollars, non-callable U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the Guarantor's obligations under Notes on the Guarantee and this Indenturestated date for payment thereof or on the applicable Redemption Date, except for those surviving obligations specified above.as the case may be;
Appears in 1 contract
Termination of Issuer’s Obligations. Except This Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a1) either (i) all Securities previously Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities that destroyed Notes which have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation cancellation or (ii) all Notes not theretofore delivered to the Trustee for cancellation (A) have become due and the Issuer has paid all sums payable by it hereunder; or
reason of the mailing of a notice of redemption or otherwise, (iB) all such Securities mature will become due and payable within one year or all of them (C) are to be called for redemption within one year 12 months under arrangements reasonably satisfactory to the Trustee for the giving the of notice of redemptionredemption by the Trustee in the name and at the reasonable expense of the Issuer, (ii) and the Issuer Issuer, any Guarantor or the Subordinated Guarantor have irrevocably deposits in trust deposited or caused to be deposited with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds in trust solely for the benefit of the Holders Holders, cash in U.S. dollars, non-callable direct obligations of such Securities for that purposethe United States maturing within one year or less (“Eligible Obligations”), money or a combination of cash in U.S. Government Obligations dollars and Eligible Obligations, in amounts as will be sufficient (in to pay and discharge the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof entire Indebtedness on the Notes not delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay Trustee for cancellation for principal, premiumpremium and Additional Interest on the Notes, if any, and accrued interest on such Securities to the date of maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, ; (iii2) no Default or Event of Default with respect to the Securities shall have has occurred and be is continuing on the date of such deposit, (iv) such the deposit or will occur as a result of the deposit and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Issuer, any Guarantor or the Subordinated Guarantor is a party or by which the Issuer, any Guarantor or the Subordinated Guarantor is bound; (3) the Issuer, each Guarantor and the Subordinated Guarantor have paid or caused to be paid all sums payable by them under this Indenture; and (4) the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be. In addition, the Issuer must deliver an Officers’ Certificate and an opinion of counsel to the Trustee stating that all conditions precedent to satisfaction and discharge of this Indenture with respect to the Notes have been satisfied. Upon satisfaction of the above conditions, the Guarantees and the Subordinated Guarantee shall be released and the Issuer, the Guarantors and the Subordinated Guarantor will be entitled to releases of any asset or property constituting Collateral from the Liens securing the Notes, the Guarantees and the Subordinated Guarantee. The Issuer may, at its option and at any time, elect to have its obligations and the obligations of the Guarantors and the Subordinated Guarantor discharged with respect to the Notes, the Guarantees, the Subordinated Guarantee and this Indenture (“Legal Defeasance”). Such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, and satisfied all of its obligations with respect to the Notes, except for (a) the rights of Holders to receive payments in respect of the principal of and interest on the Notes when such payments are due, (b) the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (c) the rights, powers, trust, duties and immunities of the Trustee and the Issuer’s obligations in connection therewith and (d) the Legal Defeasance provisions of this Section 8.01. In addition, the Issuer may, at its option and at any time, elect to have the obligations of the Issuer, ▇▇▇▇▇▇▇▇ Scotsman International, the Guarantors, if any, and the Subordinated Guarantor released with respect to Sections 4.05, 4.07 through 4.17 (“Covenant Defeasance”), clause (iii) of the first paragraph of Section 5.01 and the first proviso of the second paragraph of Section 5.01 and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Notes. In the event of Covenant Defeasance, those events described under Section 6.01(4), (5) (with respect to Sections 4.14, 4.15 and 4.16), (6), (7) (as it relates to Significant Subsidiaries), (8) (as it relates to Significant Subsidiaries), (9) or (10) or a failure to comply with clause (iii) of the first paragraph of Section 5.01 or the first proviso of the second paragraph of Section 5.01 will no longer constitute an Event of Default with respect to the Notes. Upon satisfaction of the conditions set forth below for Legal Defeasance or Covenant Defeasance, as the case may be, the Guarantees and the Subordinated Guarantee shall be released and the Issuer, the Guarantors and the Subordinated Guarantor will be entitled to releases of any asset or property constituting collateral from the Liens securing the Notes, the Guarantees and the Subordinated Guarantee. In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders money or U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient to pay the principal of, premium, if any, and interest on the Notes to redemption or maturity, as the case may be;
(b) in the case of Legal Defeasance (other than within 12 months of the Maturity Date or the redemption date for the Notes), the Issuer shall have delivered to the Trustee an opinion of counsel in the United States reasonably acceptable to the Trustee confirming that (i) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and in either case and (iii) the Holders 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 Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an opinion of counsel in the United States reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant 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 Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or insofar as Events of Default under Section 6.01(7) or (8) from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance 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 Guarantor Issuer or the Issuer any of its Subsidiaries is a party or by which it the Issuer or any of its Subsidiaries is bound, ;
(v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vif) the Issuer has shall 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 over any other creditors of either Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(g) the Issuer shall have delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein or relating to the satisfaction and discharge of this Indenture Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with. With respect ; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer; and
(h) the Issuer shall have delivered to the foregoing clause Trustee an Opinion of Counsel (a), the Issuer's obligations under Section 6.07 shall survive. With respect subject to customary exceptions) to the foregoing clause (b), effect that after the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until 91st day following the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing trust funds will not be subject to the discharge effect of the Issuer's obligations under the Securities and this Indentureany applicable bankruptcy, and the Guarantor's obligations under the Guarantee and this Indentureinsolvency, except for those surviving obligations specified abovereorganization or similar laws affecting creditors’ rights generally.
Appears in 1 contract
Sources: Indenture (Williams Scotsman Inc)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01The Issuers may, each with respect to a Series of the Issuer and the Guarantor may Notes, terminate its their obligations under the Securities Notes of such Series and this Indenture and the obligations of the Guarantors under the Note Guarantees of such Series and this Indenture, and this Indenture shall cease to be of further effect with respect to such Series, except those obligations referred to in the penultimate paragraph of this Section 8.01, if:
(ai) either
(A) all Securities previously the Notes of such Series theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities that destroyed Notes which have been replaced or Securities paid and Notes of such Series for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuers and thereafter repaid to the Issuer, as provided in Section 12.05Issuers or discharged from such trust) have been delivered to the Trustee Registrar for cancelation and the Issuer has paid all sums payable by it hereundercancellation; or
(iB) all Notes of such Securities mature Series not theretofore delivered to the Registrar for cancellation (1) have become due and payable or (2) will become due and payable within one year year, or all of them are to be called for redemption within one year year, under arrangements reasonably satisfactory to the Trustee and Paying Agent for the giving the of notice of redemptionredemption by Paying Agent in the name, (ii) and at the Issuer irrevocably deposits in trust with the Trustee during such one-year periodexpense, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders Issuers, and the Issuers have irrevocably deposited or caused to be deposited with Paying Agent funds in an amount sufficient to pay and discharge the entire Indebtedness on the Notes of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof Series not theretofore delivered to the Trustee)Registrar for cancellation, without consideration of any reinvestment of any interest thereon, to pay principalfor principal of, premium, if any, and interest on such Securities Series of Notes to the date of maturity or redemption, as the case may be, together with irrevocable instructions from the Issuers directing Paying Agent to apply such funds to the payment thereof at maturity or redemption, as the case may be; provided that upon any redemption that requires the payment of an Applicable Premium, the amount deposited shall be sufficient to the extent that an amount is deposited with Paying Agent equal to the Applicable Premium calculated as of the date of the notice of redemption, as calculated by the Issuers or on behalf of the Issuers by such Person as the Issuers shall designate, with any Applicable Premium Deficit only required to be deposited with Paying Agent on or prior to the Redemption Date, and any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to pay the Trustee and Paying Agent at least one Business Day prior to the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption;
(ii) the Issuers have paid all other sums payable under this Indenture by it hereunder, Parent or the Issuers with respect to such Series of Notes; and
(iii) no Default or Event of Default with respect to the Securities shall Issuers have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' Officer’s Certificate and an Opinion of Counsel, in each case Counsel stating that all conditions precedent provided for herein under this Indenture relating to the satisfaction and discharge of this Indenture as to all outstanding Notes of such Series have been complied with. With respect to For the foregoing clause (a)avoidance of doubt, the Issuer's obligations under Issuers may designate or appoint another entity to act as the Paying Agent for purposes of this Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above8.01.
Appears in 1 contract
Termination of Issuer’s Obligations. Except This Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a) either (i) all Securities previously the Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereunder; or
cancellation or (iii) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving the of a notice of redemption, (ii) redemption or otherwise and the Issuer or any Subsidiary Guarantor has irrevocably deposits in trust deposited or caused to be irrevocably deposited with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds in trust solely for the benefit of the Holders of such Securities for that purpose, money or cash in U.S. dollars, U.S. Government Obligations Obligations, or a combination thereof, in such 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), without consideration of any reinvestment of any interest thereoninterest, to pay principaland discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption together with irrevocable instructions from the Issuer directing the Trustee to apply such Securities funds to the payment thereof at maturity or redemption, as the case may be, and to pay ; (b) the Issuer has paid all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which by the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, Issuer; and (vic) the Issuer has delivered to the Trustee an Officers' Officer’s Certificate and an Opinion of Counsel, in each case Counsel stating that all conditions precedent provided for herein under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer. With The Issuer may, at its option and at any time, elect to have its obligations and the corresponding obligations of the Subsidiary Guarantors discharged with respect to the foregoing clause outstanding Notes and Subsidiary Guarantees (a“Legal Defeasance”). Such Legal Defeasance
(1) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due, (2) the Issuer's ’s obligations under Section 6.07 shall survive. With with respect to the foregoing Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (3) the rights, powers, trust, duties and immunities of the Trustee and the Issuer’s obligations in connection therewith and (4) the Legal Defeasance provisions of this Section 8.1. In addition, the Issuer may, at its option and at any time, elect to terminate its obligations with respect to covenants contained in Sections 4.4, 4.5, 4.8 and 4.10 through 4.19 and Article V and the operation of clauses (6), (7) (with respect to Significant Subsidiaries), (8) and (9) of Section 6.1 and the limitations described in clause (b3) of the first paragraph of Section 5.1 (“Covenant Defeasance”) and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Notes. The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. In the event of Legal Defeasance, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. In the event of Covenant Defeasance, payment of the Notes may not be accelerated because of an Event of Default specified in clause (4), the Issuer's obligations in Sections 3.03(5), 3.04(6), 3.05(7) (with respect to only to Significant Subsidiaries), 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured (8) or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge (9) of Section 6.1 or because of the Issuer's failure of the Issuer to comply with clause (3) of the first paragraph of Section 5.1. If the Issuer exercises its Legal Defeasance option or its Covenant Defeasance option, each Subsidiary Guarantor will be released from all of its obligations under with respect to its Subsidiary Guarantee. In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Securities and this IndentureIssuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in United States dollars, non-callable U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the Guarantor's obligations under Notes on the Guarantee and this Indenturestated date for payment thereof or on the applicable Redemption Date, except for those surviving obligations specified above.as the case may be;
Appears in 1 contract
Sources: Indenture (GMX Resources Inc)
Termination of Issuer’s Obligations. Except Unless pursuant to Section 3.01 provision is made for the inapplicability of all or part of this Article 4, and except as otherwise provided in this Section 12.014.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities of a particular series and this Indenture if:
(a) all Securities of such series previously authenticated and delivered (other than destroyed, lost or stolen Securities of such series that have been replaced or Securities of such series that are paid pursuant to Section 10.01 or Securities of such series for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.054.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid all sums payable by it hereunderhereunder other than those that could become payable under Sections 4.06 or 6.07; or
(b) (i) all such the Securities series mature within one year [_____] or all of them are to be called for redemption within one year [_____] under arrangements reasonably satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably deposits in trust with the Trustee during such one-year [_____] period, under the terms of an irrevocable trust agreement in form and substance reasonably satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations Securities sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if if, any, and interest on the Securities of such Securities series to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunderhereunder other than those that could become payable under Sections 4.06 or 6.07, (iii) no Default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor Issuer or the Issuer any of its Subsidiaries is a party or by which it the Issuer or any of its Subsidiaries is bound, bound and (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture set forth herein have been complied with. With respect to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in under Sections 3.02, 3.03, 3.04, 3.05, 3.06, 3.07, 10.013.13, 10.094.04, 6.074.05, 4.06, 6.10, 6.11, 12.04, 12.05 10.01 and 12.06 10.02 hereof shall survive until the Securities have matured or have been redeemedare no longer Outstanding. Thereafter, only the Issuer's obligations in provisions of Sections 6.074.05, 12.05 4.06 and 12.06 6.07 hereof shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities of such series and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above.
Appears in 1 contract
Sources: Subordinated Debt Indenture (Caprock Communications Corp)
Termination of Issuer’s Obligations. Except This Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a) either (i) all Securities previously the Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation cancellation or (ii) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving of a notice of redemption or otherwise and the Issuer or any Subsidiary Guarantor has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust solely for such purpose, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be, and if in either case the Issuer pays all other sums payable under this Indenture by the Issuer, then this Indenture, the Subsidiary Guarantees, the Security Documents and the Intercreditor Agreement shall, except for certain obligations, including those respecting the defeasance trust and obligations to register the transfer or exchange of the Notes, to replace mutilated, destroyed, lost or stolen Notes and to maintain a Registrar and Paying Agent in respect of the Notes, cease to be of further effect and all Liens under the Security Documents will be released; (b) the Issuer has paid all other sums payable under this Indenture by it hereunderthe Issuer; or
and (ic) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory the Issuer has delivered to the Trustee for giving an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the notice satisfaction and discharge of redemptionthis Indenture have been complied with; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer. The Issuer may, at its option and at any time, elect to have its obligations and the corresponding obligations of the Subsidiary Guarantors discharged with respect to the outstanding Notes, this Indenture, the Subsidiary Guarantees and the Security Documents and cause the release of all Liens on the Collateral granted under the Security Documents (“Legal Defeasance”). Such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, and satisfied all of its obligations with respect to the Notes, except for: (1) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due, (ii2) the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (3) the rights, powers, trust, duties and immunities of the Trustee and the Issuer’s obligations in connection therewith and (4) the Legal Defeasance provisions of this Section 8.1. In addition, the Issuer may, at its option and at any time, elect to terminate its obligations under the Notes, this Indenture, the Subsidiary Guarantees and the Security Documents, cause the release of all Liens on the Collateral granted under the Security Documents, terminate its obligations with respect to covenants contained in Sections 4.4, 4.5, 4.8 and 4.10 through 4.20 and Article V and the operation of clauses (6), (7) (with respect to Significant Subsidiaries), (8) or (9) of Section 6.1 and the limitations described in clause (3) of the first paragraph of Section 5.1 (“Covenant Defeasance”) and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Notes. The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. In the event of Legal Defeasance, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. In the event of Covenant Defeasance, payment of the Notes may not be accelerated because of an Event of Default specified in clause (4), (5), (6), (7) (with respect to only to Significant Subsidiaries), (8), (9) or (10) of Section 6.1 or because of the failure of the Issuer to comply with clause (3) of the first paragraph of Section 5.1. If the Issuer exercises its Legal Defeasance option or its Covenant Defeasance option, each Subsidiary Guarantor will be released from its obligations with respect to its Subsidiary Guarantee and all Liens on the Collateral will be released. In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposits in trust deposit with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely in trust, for the benefit of the Holders of such Securities for that purposecash in United States dollars, money or non-callable U.S. Government Obligations sufficient (Obligations, or a combination thereof, in such 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), without consideration of any reinvestment of any interest thereonaccountants, to pay principalthe principal of, premium, if any, and interest on such Securities to maturity the Notes on the stated date for payment thereof or redemptionon the applicable Redemption Date, as the case may be;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to pay all other sums payable by it hereunderfederal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(iii3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant 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 Covenant Defeasance had not occurred;
(4) no Default or Event of Default with respect Default, of which the Trustee is deemed to the Securities have notice, shall have occurred and be continuing on the date of such deposit or insofar as Events of Default under clauses (7) or (8) of Section 6.1 from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit, ;
(iv5) such deposit will Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which the Guarantor Issuer or the Issuer any of its Restricted Subsidiaries is a party or by which it the Issuer or any of its Restricted Subsidiaries is bound, ;
(v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi6) the Issuer has 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 preferring the Holders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or any Subsidiary Guarantor or others;
(7) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein or relating to the satisfaction and discharge of this Indenture Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with. With respect ; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer; and
(8) the Issuer shall have delivered to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect Trustee an Opinion of Counsel to the foregoing clause (b), effect that after the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until 91st day following the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing trust funds will not be subject to the discharge effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (Atp Oil & Gas Corp)
Termination of Issuer’s Obligations. Except This Second Supplemental Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Second Supplemental Indenture) as to all outstanding Notes when (a) either (i) all Securities previously the Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation cancellation or (ii) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving of a notice of redemption or otherwise and the Issuer or any Subsidiary Guarantor has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust solely for such purpose, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be; (b) the Issuer has paid all other sums payable under this Second Supplemental Indenture by it hereunderthe Issuer; or
and (ic) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory the Issuer has delivered to the Trustee for giving an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent under this Second Supplemental Indenture relating to the notice satisfaction and discharge of redemptionthis Second Supplemental Indenture have been complied with; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer.
(1) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due, (ii2) the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (3) the rights, powers, trust, duties and immunities of the Trustee and the Issuer’s obligations in connection therewith and (4) the Legal Defeasance provisions of this Section 8.1. In addition, the Issuer may, at its option and at any time, elect to terminate its obligations with respect to covenants contained in Sections 4.4, 4.5, 4.8 and 4.10 through 4.18 and the operation of clauses (6), (7) (with respect to Significant Subsidiaries), (8) (with respect to only to Significant Subsidiaries ), (9) and (10) of Section 6.1 and the limitations described in clause (3) of the first paragraph of Section 5.1 (“Covenant Defeasance”) and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Notes. The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. In the event of Legal Defeasance, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. In the event of Covenant Defeasance, payment of the Notes may not be accelerated because of an Event of Default specified in clause (4), (5), (6), (7) (with respect to only to Significant Subsidiaries), (8) (with respect to only to Significant Subsidiaries ), (9) or (10) of Section 6.1 or because of the failure of the Issuer to comply with clause (3) of the first paragraph of Section 5.1. In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposits in trust deposit with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely in trust, for the benefit of the Holders of such Securities for that purposecash in U.S. dollars, money or U.S. Government Obligations sufficient (Obligations, or a combination thereof, in such 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), without consideration of any reinvestment of any interest thereonaccountants, to pay principalthe principal of, premium, if any, and interest on such Securities to maturity the Notes on the stated date for payment thereof or redemptionon the applicable Redemption Date, as the case may be;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the date of this Second Supplemental Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to pay all other sums payable by it hereunderfederal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(iii3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant 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 Covenant Defeasance had not occurred;
(4) no Default or Event of Default with respect Default, of which the Trustee is deemed to the Securities have notice, shall have occurred and be continuing on the date of such depositdeposit or insofar as Events of Default under Section 6.1(7), (iv8) or (9) from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit;
(5) such deposit will Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under this Second Supplemental Indenture or any other material agreement or instrument to which the Guarantor Issuer or the Issuer any of its Restricted Subsidiaries is a party or by which it the Issuer or any of its Restricted Subsidiaries is bound, ;
(v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi6) the Issuer has shall 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 over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or any Subsidiary Guarantor or others; and
(7) the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein or relating to the satisfaction and discharge of this Indenture Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with. With respect ; provided, however, that such counsel may rely, as to the foregoing clause (a)matters of fact, the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured on a certificate or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge certificates of officers of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.
Appears in 1 contract
Sources: Second Supplemental Indenture (Rosetta Resources Inc.)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01SECTION 8.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture Notes of any series if:
(ai) all Securities Notes of such series previously authenticated and delivered (other than destroyed, lost or stolen Securities Notes that have been replaced or Securities Notes of such series that are paid pursuant to SECTION 4.01 or the Notes of such series for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05SECTION 8.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid all sums payable by it hereunder; or
(iii) all (A) the Notes of such Securities series mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (iiB) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if if, any, and interest on the Notes of such Securities series to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iiiC) no Default or Event of Default with respect to the Securities Notes of such series shall have occurred and be continuing on the date of such deposit, (ivD) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor Company or the Issuer any of its Subsidiaries is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, bound and (viE) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (ai), the Issuer's obligations under Section 6.07 SECTION 7.07 shall survivesurvive with respect to such Notes. With respect to the foregoing clause (bii), the Issuer's obligations in Sections 3.03SECTIONS 2.02, 3.042.03, 3.052.04, 3.062.05, 3.072.06, 10.012.07, 10.092.08, 6.072.09, 6.102.14, 6.114.01, 12.044.02, 12.05 7.07, 7.08, 8.04, 8.05 and 12.06 8.06 with respect to such Notes shall survive until the Securities have matured or have been redeemedsuch Notes are no 74 longer outstanding. Thereafter, only the Issuer's obligations with respect to such Notes in Sections 6.07SECTIONS 7.07, 12.05 8.04, 8.05 and 12.06 8.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities Notes of such series and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture with respect to such Notes except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (Stone Container Finance CO of Canada II)
Termination of Issuer’s Obligations. Except This Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a1) either (i) all Securities previously Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities that destroyed Notes which have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation cancellation or (ii) all Notes not theretofore delivered to the Trustee for cancellation (A) have become due and the Issuer has paid all sums payable by it hereunder; or
reason of the mailing of a notice of redemption or otherwise, (iB) all such Securities mature will become due and payable within one year or all of them (C) are to be called for redemption within one year 12 months under arrangements reasonably satisfactory to the Trustee for the giving the of notice of redemptionredemption by the Trustee in the name and at the reasonable expense of the Issuer, (ii) and the Issuer Issuer, any Guarantor or the Subordinated Guarantor have irrevocably deposits in trust deposited or caused to be deposited with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds in trust solely for the benefit of the Holders Holders, cash in U.S. dollars, non-callable direct obligations of such Securities for that purposethe United States maturing within one year or less ("ELIGIBLE OBLIGATIONS"), money or a combination of cash in U.S. Government Obligations dollars and Eligible Obligations, in amounts as will be sufficient (in to pay and discharge the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof entire Indebtedness on the Notes not delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay Trustee for cancellation for principal, premiumpremium and Additional Interest on the Notes, if any, and accrued interest on such Securities to the date of maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, ; (iii2) no Default or Event of Default with respect to the Securities shall have has occurred and be is continuing on the date of such deposit, (iv) such the deposit or will occur as a result of the deposit and the deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or material instrument to which the Issuer, any Guarantor or the Issuer Subordinated Guarantor is a party or by which it the Issuer, any Guarantor or the Subordinated Guarantor is bound; (3) the Issuer, (v) if at such time each Guarantor and the Securities are listed on a national securities exchange, the Securities will not Subordinated Guarantor have paid or caused to be delisted as a result of such deposit, defeasance and discharge, paid all sums payable by them under this Indenture; and (vi4) the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be. In addition, the Issuer must deliver an Officers' Certificate and an Opinion opinion of Counsel, in each case counsel to the Trustee stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With with respect to the foregoing clause (a)Notes have been satisfied. Upon satisfaction of the above conditions, the Guarantees and the Subordinated Guarantee shall be released and the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 Guarantors and 12.06 shall survive until the Securities have matured Subordinated Guarantor will be entitled to releases of any asset or have been redeemed. Thereafter, only property constituting Collateral from the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable depositLiens securing the Notes, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities and this Indenture, Guarantees and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified aboveSubordinated Guarantee.
Appears in 1 contract
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each This Indenture shall cease to be of further effect (except that the Issuer Issuer's and the Guarantor may terminate its Subsidiary Guarantors' obligations under Section 7.07 and 10.04 and the Securities Issuer's, Trustee's and this Indenture if:
(aPaying Agent's obligations under Section 10.03 shall survive) when all Securities previously outstanding Notes theretofore authenticated and issued have been delivered (other than destroyed, lost or stolen Securities Notes that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05paid) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid all sums payable by it the Issuer hereunder; or. In addition, the Issuer may terminate all of its obligations under this Indenture if:
(i) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii1) the Issuer irrevocably deposits in trust with the Trustee, or at the option of the Trustee during such one-year period, with a trustee reasonably satisfactory to the Trustee and the Issuer under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. United States Government Obligations sufficient (in the opinion of a nationally recognized firm of as certified by an independent public accountants expressed in a written certification thereof delivered to accountant designated by the Trustee), without consideration of any reinvestment of any interest thereon, Issuer) to pay principal, premium, if any, principal and interest on such Securities the Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it them hereunder, provided that (iiii) the trustee of the irrevocable trust shall have been irrevocably instructed to pay such money or the proceeds of such United States Government Obligations to the Trustee and (ii) the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such United States Government Obligations to the payment of said principal and interest with respect to the Notes;
(2) the Issuer and the Subsidiary Guarantors deliver to the Trustee an Officer's Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture have been complied with, and an Opinion of Counsel to the same effect; and
(3) no Event of Default or event (including such deposit) which, with notice or lapse of time, or both, would become an Event of Default with respect to the Securities Notes shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under. Then, this Indenture or any other agreement or instrument shall cease to which the Guarantor or the Issuer is a party or by which it is bound, be of further effect (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted except as a result of such deposit, defeasance and dischargeprovided in this paragraph), and (vi) the Issuer has delivered to Trustee, on demand of the Trustee an Officers' Certificate and an Opinion Issuer, shall execute proper instruments acknowledging confirmation of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of under this Indenture have been complied withIndenture. With respect to The Issuer may make the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survivedeposit only if Article 11 hereof does not prohibit such payment. With respect to the foregoing clause (b)However, the Issuer's obligations in Sections 3.032.03, 3.042.04, 3.052.05, 3.062.06, 3.072.07, 10.014.01, 10.097.07, 6.077.08, 6.1010.03 and 10.04, 6.11, 12.04, 12.05 and 12.06 the Trustee's and Paying Agent's obligations in Section 10.03 shall survive until the Securities have matured or have been redeemedNotes are no longer outstanding. Thereafter, only the Issuer's, Trustee's and Paying Agents' obligations in Sections 6.07, 12.05 and 12.06 Section 10.03 shall survive. After any such irrevocable depositdeposit made pursuant to this Section 10.01 and satisfaction of the other conditions set forth herein, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's and the Subsidiary Guarantors' obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above. In order to have money available on a payment date to pay principal or interest on the Notes, the United States Government Obligations shall be payable as to principal or interest at least one Business Day before such payment date in such amounts as will provide the necessary money. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the United States Government Obligations deposited pursuant to this Section 10.01 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Notes.
Appears in 1 contract
Termination of Issuer’s Obligations. Except as otherwise provided Subject to the provisions of Article Eight, the Issuers may terminate their and the Subsidiary Guarantors' substantive obligations in this Section 12.01, each respect of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
(a) by delivering all outstanding Securities previously authenticated and delivered (other than destroyed, lost or stolen Securities that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid paying all sums payable by them on account of principal of and interest on all Securities or otherwise. In addition to the foregoing, the Issuers may, provided that no Default or Event of Default has occurred and is continuing or would arise therefrom (or, with respect to a Default or Event of Default specified in Section 6.01(8) or (9), any time on or prior to the 91st calendar day after the date of such deposit (it hereunder; or
being understood that this condition shall not be deemed satisfied until after such 91st day)) and provided that no default under any Senior Indebtedness would result therefrom, terminate their and the Subsidiary Guarantors' substantive obligations in respect of the Securities (except for their obligations to pay the principal of and interest on the Securities and the Subsidiary Guarantors' guarantee thereof) by (i) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably deposits in trust depositing with the Trustee during such one-year periodTrustee, under the terms of an irrevocable trust agreement in form satisfactory agreement, money or direct non-callable obligations of the United States of America for the payment of which the full faith and credit of the United States is pledged ("United States Government Obligations") sufficient (without reinvestment) to pay all remaining Indebtedness on the Securities, (ii) delivering to the Trustee, as trust funds solely for Trustee either an Opinion of Counsel or a ruling directed to the benefit of Trustee from the Internal Revenue Service to the effect that the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, and interest on such Securities to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted recognize income, gain or loss for federal income tax purposes solely as a result of such depositdeposit and termination of obligations, defeasance and discharge(iii) delivering to the Trustee an Opinion of Counsel to the effect that the Issuers' exercise of their option under this paragraph will not result in any of the Issuers, the Trustee or the trust created by the Issuers' deposit of funds pursuant to this provision becoming or being deemed to be an "investment company" under the Investment Company Act of 1940, as amended, and (viiv) the Issuer has delivered delivering to the Trustee an Officers' Certificate and an Opinion of Counsel, in Counsel each case stating that compliance with all conditions precedent provided for herein relating herein. In addition, subject to the satisfaction provisions of Article Eight with respect to the creation of the defeasance trust provided for in the following clause (i), the Issuers may, provided that no Default or Event of Default has occurred and discharge is continuing or would arise therefrom (or, with respect to a Default or Event of Default specified in
Section 6.01 (8) or (9), any time on or prior to the 91st calendar day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 91st day)) and provided that no default under any Senior Indebtedness would result therefrom, terminate all of their and the Subsidiary Guarantors' substantive obligations in respect of the Securities (including their obligations to pay the principal of and interest on the Securities and the Subsidiary Guarantors' guarantee thereof) by (i) depositing with the Trustee, under the terms of an irrevocable trust agreement, money or United States Government Obligations sufficient (without reinvestment) to pay all remaining indebtedness on the Securities, (ii) delivering to the Trustee either a ruling directed to the Trustee from the Internal Revenue Service to the effect that the Holders of the Securities will not recognize income, gain or loss for federal income tax purposes solely as a result of such deposit and termination of obligations or an Opinion of Counsel based upon such a ruling addressed to the Trustee or a change in the applicable Federal tax law since the date of this Indenture have been complied with. With respect to such effect, (iii) delivering to the foregoing clause (a)Trustee an Opinion of Counsel to the effect that the Issuers' exercise of their option under this paragraph will not result in any of the Issuers, the Issuer's obligations Trustee or the trust created by the Issuers' deposit of funds pursuant to this provision becoming or being deemed to be an "investment company" under Section 6.07 shall survive. With respect the Investment Company Act of 1940, as amended, and (iv) delivering to the Trustee an Officers' Certificate and an Opinion of Counsel each stating compliance with all conditions precedent provided for herein. Notwithstanding the foregoing clause (b)paragraph, the Issuer's Issuers' obligations in Sections 3.032.03, 3.042.05, 3.052.06, 3.062.07, 3.074.01 (but not with respect to termination of substantive obligations pursuant to the third sentence of the foregoing paragraph), 10.014.02, 10.097.07, 6.077.08, 6.10, 6.11, 12.04, 12.05 9.03 and 12.06 9.04 shall survive until the Securities have matured or have been redeemedare no longer outstanding. Thereafter, only Thereafter the Issuer's Issuers' obligations in Sections 6.077.07, 12.05 9.03 and 12.06 9.04 shall survive. After any such delivery or irrevocable depositdeposit and delivery of an Officers' Certificate and Opinion of Counsel, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's Issuers' and the Subsidiary Guarantors' obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above.
Appears in 1 contract
Termination of Issuer’s Obligations. Except This Third Supplemental Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Third Supplemental Indenture) as to all outstanding Notes when (a) either (i) all Securities previously the Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereunder; or
cancellation or (iii) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving the of a notice of redemption, (ii) redemption or otherwise and the Issuer or any Subsidiary Guarantor has irrevocably deposits in trust deposited or caused to be irrevocably deposited with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds in trust solely for the benefit of the Holders of such Securities for that purpose, money or cash in U.S. dollars, U.S. Government Obligations sufficient (Obligations, or a combination thereof, in such 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)accountants, without consideration of any reinvestment of any interest thereoninterest, to pay principaland discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption together with irrevocable instructions from the Issuer directing the Trustee to apply such Securities funds to the payment thereof at maturity or redemption, as the case may be, and to pay ; (b) the Issuer has paid all other sums payable under this Third Supplemental Indenture by it hereunderthe Issuer; and (c) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent under this Third Supplemental Indenture relating to the satisfaction and discharge of this Third Supplemental Indenture have been complied with; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer.
(1) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due, (iii2) no the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (3) the rights, powers, trust, duties and immunities of the Trustee and the Issuer’s obligations in connection therewith and (4) the Legal Defeasance provisions of this Section 8.1. In addition, the Issuer may, at its option and at any time, elect to terminate its obligations with respect to covenants contained in Sections 4.4, 4.5, 4.8 and 4.10 through 4.18 and the operation of clauses (6), (7) (with respect to Significant Subsidiaries), (8) (with respect to only to Significant Subsidiaries ), (9) and (10) of Section 6.1 and the limitations described in clause (3) of the first paragraph of Section 5.1 (“Covenant Defeasance”) and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Securities Notes. The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. In the event of Legal Defeasance, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. In the event of Covenant Defeasance, payment of the Notes may not be accelerated because of an Event of Default specified in clause (4), (5), (6), (7) (with respect to only to Significant Subsidiaries), (8) (with respect to only to Significant Subsidiaries ), (9) or (10) of Section 6.1 or because of the failure of the Issuer to comply with clause (3) of the first paragraph of Section 5.1. In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, premium, if any, and interest on the Notes on the stated date for payment thereof or on the applicable Redemption Date, as the case may be;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the date of this Third Supplemental Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal 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 Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant 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 Covenant Defeasance had not occurred;
(4) no Default or Event of Default, of which the Trustee is deemed to have notice, shall have occurred and be continuing on the date of such depositdeposit or insofar as Events of Default under Section 6.1(7), (iv8) or (9) from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit;
(5) such deposit will Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under this Third Supplemental Indenture or any other material agreement or instrument to which the Guarantor Issuer or the Issuer any of its Restricted Subsidiaries is a party or by which it the Issuer or any of its Restricted Subsidiaries is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.;
Appears in 1 contract
Sources: Third Supplemental Indenture (Rosetta Resources Inc.)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01Subject to the provisions of Article Eight, each the Company may terminate its substantive obligations and the substantive obligations of the other Issuer and the Guarantor may terminate its obligations under Guarantors in respect of the Securities and this Indenture if:
(a) by delivering all outstanding Securities previously authenticated and delivered (other than destroyed, lost or stolen Securities that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid paying all sums payable by it hereunder; or
(i) all such Securities mature within one year or all the Issuers on account of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principalprincipal of, premium, if any, and interest on such Securities all Securities. In addition to maturity or redemptionthe foregoing, as subject to the case may beprovisions of Article Eight with respect to the creation of the defeasance trust provided for in the following clause (i), and to pay all other sums payable by it hereunderthe Company may, (iii) provided that no Default or Event of Default has occurred and is continuing or would arise therefrom (or, with respect to a Default or Event of Default specified in Section 6.01(8) or (9), any time on or prior to the Securities shall have occurred and be continuing on 91st calendar day after the date of such depositdeposit (it being understood that this condition shall not be deemed satisfied until after such 91st day)) and provided that no default under any Senior Debt would result therefrom and, so long as any Obligations or commitments under the Credit Agreement shall be outstanding, the Agent under the Credit Agreement shall have consented thereto in writing, terminate its substantive obligations and the substantive obligations of the other Issuers and the Guarantors in respect of the Securities (except for the Issuers’ obligations to pay the principal of (and premium, if any, on) and interest on the Securities and the Guarantors’ Guarantee thereof) by (i) depositing with the Trustee, under the terms of an irrevocable trust agreement, money which is sufficient or direct non-callable obligations of the United States of America for the payment of which the full faith and credit of the United States is pledged (“United States Government Obligations”) the principal of and interest on which is sufficient (without reinvestment), or a combination thereof sufficient, in the written opinion of a firm of nationally recognized certified public accountants delivered to the Trustee, to pay all remaining indebtedness on the Securities, (ivii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument delivering to which the Guarantor or Trustee an Opinion of Counsel to the Issuer is a party or by which it is bound, (v) if at such time effect that the Securities are listed on a national securities exchange, Holders of the Securities will not be delisted recognize income, gain or loss for federal income tax purposes as a result of such depositdeposit and termination of obligations, defeasance and discharge(iii) delivering to the Trustee an Opinion of Counsel to the effect that the Company’s exercise of its option under this paragraph will not result in any of the Issuers, the Trustee or the trust created by the Company’s deposit of funds pursuant to this provision becoming or being deemed to be an “investment company” under the Investment Company Act of 1940, as amended, and (viiv) the Issuer has delivered delivering to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in Counsel each case stating that there has been compliance with all conditions precedent provided for herein relating herein. In addition, subject to the satisfaction provisions of Article Eight with respect to the creation of the defeasance trust provided for in the following clause (i), the Company may, provided that no Default or Event of Default has occurred and discharge is continuing or would arise therefrom (or, with respect to a Default or Event of Default specified in Section 6.01(8) or (9), any time on or prior to the 91st calendar day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 91st day)) and provided that no default under any Senior Debt would arise therefrom and, so long as any Obligations or commitments under the Credit Agreement shall be outstanding, the Agent under the Credit Agreement shall have consented thereto in writing, terminate all of its substantive obligations and all of the substantive obligations of the other Issuers and the Guarantors in respect of the Securities (including the Issuers’ obligations to pay the principal of (and premium, if any, on) and interest on the Securities and the Guarantors’ Guarantee thereof) by (i) depositing with the Trustee, under the terms of an irrevocable trust agreement, money which is sufficient or United States Government Obligations the principal of and interest on which is sufficient (without reinvestment), or a combination thereof sufficient, in the written opinion of a firm of nationally recognized certified public accountants delivered to the Trustee, to pay all remaining indebtedness on the Securities, (ii) delivering to the Trustee either a ruling directed to the Trustee from the Internal Revenue Service to the effect that the Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and termination of obligations or an opinion of Counsel addressed to the Trustee based upon such a ruling or a change in the applicable Federal tax law since the date of this Indenture have been complied with. With respect to such effect, (iii) delivering to the foregoing clause (a)Trustee an opinion of Counsel to the effect that the Company’s exercise of its option under this paragraph will not result in any of the Issuers, the Issuer's obligations Trustee or the trust created by the Issuers’ deposit of funds pursuant to this provision becoming or being deemed to be an “investment company” under Section 6.07 shall survive. With respect the Investment Company Act of 1940, as amended, and (iv) delivering to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that there has been compliance with all conditions precedent provided for herein. Notwithstanding the foregoing clause (b)paragraph, the Issuer's Issuers’ obligations in Sections 3.032.03, 3.042.05, 3.052.06, 3.062.07, 3.074.01 (but not with respect to termination of substantive obligations pursuant to the third sentence of the foregoing paragraph), 10.014.02, 10.097.07, 6.077.08, 6.10, 6.11, 12.04, 12.05 9.03 and 12.06 9.04 shall survive until the Securities have matured or have been redeemedare no longer outstanding. Thereafter, only Thereafter the Issuer's Issuers’ obligations in Sections 6.077.07, 12.05 9.03 and 12.06 9.04 shall survive. After any such delivery or irrevocable depositdeposit and delivery of an Officers’ Certificate and Opinion of Counsel, the Trustee upon written request a Company Request shall acknowledge in writing the discharge of the Issuer's Issuers’ and the Guarantors’ obligations under the Securities Securities, the Guarantees and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above.
Appears in 1 contract
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.018.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities Notes and this Indenture if:
(a) all Securities Notes previously authenticated and delivered (other than destroyed, lost or stolen Securities Notes that have been replaced or Securities Notes for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.058.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid all sums payable by it hereunder; or
(i) all such Securities Notes mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities Notes for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, and interest on such Securities Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities Notes shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities Notes are listed on a national securities exchange, the Securities Notes will not be delisted as a result of such deposit, defeasance and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a), the Issuer's obligations under Section 6.07 7.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.032.02, 3.042.03, 3.052.04, 3.062.05, 3.072.06, 10.012.07, 10.092.08, 6.072.09, 6.102.14, 6.114.01, 12.044.02, 12.05 7.07, 7.08, 8.04, 8.05 and 12.06 8.06 shall survive until the Securities Notes have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.077.07, 12.05 8.05 and 12.06 8.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities Notes and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.
Appears in 1 contract
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each This Indenture shall cease to be of further effect (except that the Issuer Issuers' and the Guarantor may terminate its Subsidiary Guarantors' obligations under Section 7.07 and 8.04 and the Securities Issuers' Trustee's and this Indenture if:
(aPaying Agent's obligations under Section 8.03 shall survive) when all Securities previously outstanding Notes theretofore authenticated and issued have been delivered (other than destroyed, lost or stolen Securities that Notes which have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05paid) have been delivered to the Trustee for cancelation cancellation and the Issuer has Issuers have paid all sums payable by it the Issuers hereunder; or. In addition, the Issuers may terminate all of their obligations under this Indenture if:
(i) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii1) the Issuer Issuers irrevocably deposits deposit in trust with the Trustee during such one-year periodor at the option of the Trustee, with a trustee reasonably satisfactory to the Trustee and the Issuers under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. United States Government Obligations sufficient (in the opinion of a nationally recognized firm of as certified by an independent public accountants expressed in a written certification thereof delivered to accountant designated by the Trustee), without consideration of any reinvestment of any interest thereon, Issuers) to pay principal, premium, if any, principal and interest on such Securities the Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it them hereunder, provided that (iiii) the trustee of the irrevocable trust shall have been irrevocably instructed to pay such money or the proceeds of such United States Government Obligations to the Trustee and (ii) the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such United States Government Obligations to the payment of said principal and interest with respect to the Notes;
(2) the Issuers and the Subsidiary Guarantors deliver to the Trustee an Officers' Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture have been complied with, and an Opinion of Counsel to the same effect; and
(3) no Event of Default or event (including such deposit) which, with notice or lapse of time, or both, would become an Event of Default with respect to the Securities Notes shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under. Then, this Indenture or any other agreement or instrument shall cease to which be of further effect (except as provided this paragraph), and the Guarantor or Trustee, on demand of the Issuer is a party or by which it is boundIssuers, (v) shall execute proper instruments acknowledging confirmation of and discharge under this Indenture. The Issuers may make the deposit only if at Article 10 hereof does not prohibit such time the Securities are listed on a national securities exchangepayment. However, the Securities will not be delisted as a result of such depositIssuers' obligations in Section 2.03, defeasance 2.04, 2.05, 2.06, 2.07, 4.01, 7.07, 7.08, 8.03 and discharge8.04, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate Trustee's and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the IssuerPaying Agent's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 Section 8.03 shall survive until the Securities have matured or have been redeemedNotes are no longer outstanding. Thereafter, only the IssuerIssuers', Trustee's and Paying Agents' obligations in Sections 6.07, 12.05 and 12.06 Section 8.03 shall survive. After any such irrevocable depositdeposit made pursuant to this Section 8.01 and satisfaction of the other conditions set forth herein, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's Issuers' and the Subsidiary Guarantors' obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above. In order to have money available on a payment date to pay principal or interest on the Notes, the United States Government Obligations shall be payable as to principal or interest at least one Business Day before such payment date in such amounts as will provide the necessary money. United States Government Obligations shall not be callable at the issuer's options. The Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the United States Government Obligations deposited pursuant to this Section 8.01 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Notes.
Appears in 1 contract
Sources: Indenture (Foamex International Inc)
Termination of Issuer’s Obligations. Except This Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a) either (i) all Securities previously Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities that destroyed Notes which have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuers and thereafter repaid to the Issuer, as provided in Section 12.05Issuers or discharged from such trust) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereunder; or
cancellation or (iii) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory Notes not theretofore delivered to the Trustee for giving cancellation have become due and payable and the notice of redemption, (ii) the Issuer Issuers have irrevocably deposits in trust deposited or caused to be deposited with the Trustee during such one-year period, under funds in an amount sufficient to pay and discharge the terms of an irrevocable trust agreement in form satisfactory to entire Indebtedness on the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof Notes not theretofore delivered to the Trustee)Trustee for cancellation, without consideration of any reinvestment of any interest thereon, to pay principalfor principal of, premium, if any, and interest on the Notes to the date of deposit together with irrevocable instructions from the Issuers directing the Trustee to apply such Securities funds to the payment thereof at maturity or redemption, as the case may be, and to pay ; (b) the Issuers have paid all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which by the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, Issuers; and (vic) the Issuer has Issuers have delivered to the Trustee an Officersofficers' Certificate certificate and an Opinion opinion of Counsel, in each case counsel stating that all conditions precedent provided for herein under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. With respect ; provided, however, that such counsel may rely, as to the foregoing clause (a)matters of fact, the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured on a certificate or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge certificates of officers of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified aboveIssuers.
Appears in 1 contract
Sources: Indenture (Abraxas Petroleum Corp)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each of the Issuer and the Guarantor The Issuers may terminate its obligations under the Securities Notes and this Indenture if:
(a) Indenture, except those obligations referred to in the penultimate paragraph of this Section 8.1, if all Securities Notes previously authenticated and delivered (other than destroyed, lost or stolen Securities that Notes which have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05paid) have been delivered to the Trustee for cancelation cancellation and the Issuer has Issuers have paid all sums payable by it them hereunder; or, or if:
(ia) all such Securities mature within one year or pursuant to Article III, the Issuers shall have given notice to the Trustee and mailed a notice of redemption to each Holder of the redemption of all of them are to be called for redemption within one year the Notes under arrangements satisfactory to the Trustee for the giving the notice of redemption, such notice;
(iib) the Issuer Issuers shall have irrevocably deposits in trust deposited or caused to be deposited with the Trustee during such one-year periodor a trustee satisfactory to the Trustee, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds in trust solely for the benefit of the Holders of such Securities for that purpose, money or direct non-callable obligations of, or non-callable obligations guar- anteed by, the United States of America for the payment of which guarantee or obligation the full faith and credit of the United States is pledged ("U.S. Government Obligations Obligations") maturing as to principal and interest in such 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), without consideration of any reinvestment of any interest thereonsuch interest, to pay principal, premium, if any, principal of and interest on such Securities the outstanding Notes to maturity or redemption, as provided that the case may be, Trustee shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Obligations to the payment of said principal and to pay all other sums payable by it hereunder, (iii) no Default or Event of Default interest with respect to the Securities Notes; and
(c) the Issuers shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided providing for herein relating to the satisfaction termination of the Issuers' obligations under the Notes and discharge of this Indenture have been complied with. With respect to Notwithstanding the foregoing clause (a)paragraph, the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's Issuers' obligations in Sections 3.032.6, 3.042.7, 3.052.8, 3.062.9, 3.074.1, 10.014.2, 10.097.7, 6.077.8, 6.108.4, 6.11, 12.04, 12.05 8.5 and 12.06 10.1 shall survive until the Securities have matured or have been redeemedNotes are no longer outstanding. ThereafterAfter the Notes are no longer outstanding, only the Issuer's Issuers' obligations in Sections 6.07, 12.05 7.7 and 12.06 8.5 shall survive. After any such delivery or irrevocable deposit, deposit the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's Issuers' obligations under the Securities Notes and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (Aoa Capital Corp)
Termination of Issuer’s Obligations. Except This Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights or registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a) either (i) all Securities previously Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities that destroyed Notes which have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation cancellation or (ii) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable and the Issuer has paid all sums payable by it hereunder; or
(i) all such Securities mature within one year irrevocably deposited or all of them are caused to be called for redemption within one year under arrangements satisfactory deposited with the Trustee funds in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for giving the notice of redemptioncancellation, (ii) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principalprincipal of, premium, if any, and interest on the Notes to the date of deposit together with irrevocable instructions from the Issuer directing the Trustee to apply such Securities funds to the payment thereof at maturity or redemption, as the case may be, and to pay ; (b) the Issuer has paid all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which by the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, Issuer; and (vic) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case Counsel stating that all conditions precedent provided for herein under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. With respect ; provided, however, that such counsel may rely, as to the foregoing clause (a)matters of fact, the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured on a certificate or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge certificates of officers of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (Standard Commercial Corp)
Termination of Issuer’s Obligations. Except This Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights or registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a) either (i) all Securities previously Notes theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities that destroyed Notes which have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuers and thereafter repaid to the Issuer, as provided in Section 12.05Issuers or discharged from such trust) have been delivered to the Trustee for cancelation cancellation or (ii) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable or, by their terms, are to become due and payable on their maturity date within one year, or are to be called for redemption upon delivery of notice, within one year and the Issuer has Issuers have irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the principal of, premium, if any, and interest on the Notes to the date of maturity or redemption, as the case may be, together with irrevocable instructions from the Issuers directing the Trustee to apply such funds to the payment thereof or redemption, as the case may be; (b) the Issuers have paid all other sums payable under this Indenture by it hereunderthe Issuers; orand (c) the Issuers have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. The Issuers may, at their option and at any time, elect to have their obligations discharged with respect to the outstanding Notes ("Legal Defeasance"). Upon any such Legal Defeasance this Indenture shall cease to be of further effect and the Issuers shall have no further obligations hereunder or under the Notes and the entire indebtedness represented by the outstanding Notes shall be deemed to have been paid and discharged, except for (a) the rights of Holders to receive payments in respect of the principal, premium, if any, and interest on the Notes when such payments are due from the trust referred to below, (b) the Issuers' obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in United States dollars, non-callable U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the Notes on the stated date for payment thereof or on the applicable Redemption Date, as the case may be;
(b) in the case of Legal Defeasance, the Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (i) the Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance, and (ii) the Holders 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 Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant 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 Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default arising in connection with the substantially contemporaneous borrowing of funds to fund the deposit referenced in clause (a) above) or insofar as Events of Default under Section 5.01(h) or (i) from
(e) such Legal Defeasance or Covenant Defeasance 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 either of the Issuers is a party or by which either of the Issuers is bound;
(f) the Issuers shall have delivered to the Trustee an Officer's Certificate of each Issuer stating that the deposit was not made by the Issuers with the intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuers or others;
(g) the Issuers shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all such Securities mature conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with; and
(h) the Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect that after 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. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) above with respect to Legal Defeasance need not be delivered if all the Notes not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the maturity date within one year year, or all of them (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving the of notice of redemption, (ii) the Issuer irrevocably deposits in trust with redemption by the Trustee during such one-year periodin the name, under and at the terms of an irrevocable trust agreement in form satisfactory to the Trusteeexpense, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, and interest on such Securities to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified aboveIssuers.
Appears in 1 contract
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.014.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities Notes and this Indenture if:
(a) all Securities Notes previously authenticated and delivered (other than destroyed, lost or stolen Securities Notes that have been replaced or Securities Notes that are paid pursuant to Section 10.01 or Notes for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.054.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid all sums payable by it hereunderhereunder other than those that could become payable under Sections 4.06 or 6.07; or
(i) all such Securities the Notes mature within one year or all of them are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form and substance reasonably satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations Securities sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if if, any, and interest on such Securities the Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunderhereunder other than those that could become payable under Sections 4.06 or 6.07, (iii) no Default or Event of Default with respect to the Securities Notes shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor Issuer or the Issuer any of its Subsidiaries is a party or by which it the Issuer or any of its Subsidiaries is bound, bound and (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture set forth herein have been complied with. With respect to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in under Sections 3.02, 3.03, 3.04, 3.05, 3.06, 3.07, 10.013.13, 10.094.04, 6.074.05, 4.06, 6.10, 6.11, 12.04, 12.05 10.01 and 12.06 10.02 hereof shall survive until the Securities have matured or have been redeemedNotes are no longer Outstanding. Thereafter, only the Issuer's obligations in provisions of Sections 6.074.05, 12.05 4.06 and 12.06 6.07 hereof shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities Notes and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above.
Appears in 1 contract
Termination of Issuer’s Obligations. Except as otherwise provided The Issuers may terminate their substantive obligations in this Section 12.01, each respect of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
(a) by delivering all outstanding Securities previously authenticated and delivered (other than destroyed, lost or stolen Securities that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid paying all sums payable by it hereunder; on account of principal of and interest on all Securities or otherwise. In addition to the foregoing, subject to the provisions of Article Eight with respect to the creation of the defeasance trust provided for in the following clause (i), the Issuers may, provided that no Default or Event of Default has occurred and is continuing or would arise therefrom (or
, with respect to a Default or Event of Default specified in Section 6.01(vii) or (viii), occurs at any time on or prior to the 123rd calendar day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 123rd day)), terminate their substantive obligations in respect of Article Four (other than Sections 4.01, 4.02, 4.07, 4.09 and 4.11) and Article Five hereof and any Event of Default specified in Section 6.01 (iii), (iv), (v) or (vi) by (i) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably deposits in trust depositing with the Trustee during such one-year periodTrustee, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purposeagreement, money or U.S. United States Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, and interest on such Securities to maturity or redemption, as the case may be, and reinvestment) to pay all other sums payable by it hereunderremaining Indebtedness on the Securities, (iiiii) no Default or Event of Default with respect delivering to the Securities shall have occurred and be continuing on Trustee either an Opinion of Counsel or a ruling directed to the date of such deposit, (iv) such deposit Trustee from the Internal Revenue Service to the effect that the Holders will not result in a breach recognize income, gain or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted loss for federal income tax purposes as a result of such depositdeposit and termination of obligations, defeasance and discharge(iii) delivering to the Trustee an Opinion of Counsel to the effect that the Issuers' exercise of the option under this Section 9.01 will not result in any of the Issuers, the Trustee or the trust created by the Issuers' deposit of funds pursuant to this provision becoming or being deemed to be an "investment company" under the Investment Company Act of 1940, as amended (the "Investment Company Act"), and (viiv) the Issuer has delivered delivering to the Trustee an Officers' Certificate and an Opinion of Counsel, in Counsel each case stating that compliance with all conditions precedent provided for herein relating herein. In addition, the Issuers may, provided that no Default or Event of Default has occurred and is continuing or would arise therefrom (or, with respect to a Default or Event of Default specified in Section 6.01(vii) or (viii), occurs at any time on or prior to the satisfaction 123rd calendar day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 123rd day)), terminate all of their substantive obligations in respect of the Securities (including its obligations to pay the principal of and discharge interest on the Securities) by (i) depositing with the Trustee, under the terms of an irrevocable trust agreement, money or United States Government Obligations sufficient (without reinvestment) to pay all remaining Indebtedness on the Securities, (ii) delivering to the Trustee either a ruling directed to the Trustee from the Internal Revenue Service to the effect that the Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and termination of obligations or an Opinion of Counsel addressed to the Trustee based upon such a ruling or based on a change in the applicable Federal tax law since the date of this Indenture have been complied with. With respect to such effect, (iii) delivering to the foregoing clause (a)Trustee an Opinion of Counsel to the effect that the exercise of the option under this Section 9.01 will not result in any of the Issuers, the Issuer's obligations Trustee or the trust created by the deposit of funds pursuant to this provision becoming or being deemed to be an "investment company" under Section 6.07 shall survive. With respect the Investment Company Act and (iv) delivering to the Trustee an Officers' Certificate and an Opinion of Counsel each stating compliance with all conditions precedent provided for herein. Notwithstanding the foregoing clause (b)paragraph, the Issuer's Issuers' obligations in Sections 3.032.02, 3.042.03, 3.052.04, 3.062.05, 3.072.06, 10.012.07, 10.092.10, 6.072.12, 6.102.13 and 4.01 (but not with respect to termination of substantive obligations pursuant to the third sentence of the foregoing paragraph), 6.114.02, 12.047.07, 12.05 7.08, 9.03 and 12.06 9.04 shall survive until the Securities have matured or have been redeemedare no longer outstanding. Thereafter, only Thereafter the Issuer's Issuers' obligations in Sections 6.077.07, 12.05 9.03 and 12.06 9.04 shall survive. After any such delivery or irrevocable depositdeposit and delivery of an Officers' Certificate and Opinion of Counsel, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's Issuers' obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above. The Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the United States Government Obligations deposited pursuant to this Section 9.01 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Securities.
Appears in 1 contract
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.018.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture Notes if:
(ai) all Securities Notes previously authenticated and delivered (other than destroyed, lost or stolen Securities Notes that have been replaced or Securities Notes that are paid pursuant to Section 4.01 or the Notes for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.058.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid all sums payable by it hereunder; or
(iii) all such Securities (A) the Notes mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (iiB) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if if, any, and interest on such Securities the Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iiiC) no Default or Event of Default with respect to the Securities Notes shall have occurred and be continuing on the date of such deposit, (ivD) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor Issuer or the Issuer any of its Subsidiaries is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, bound and (viE) the Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (ai), the Issuer's ’s obligations under Section 6.07 7.07 shall survivesurvive with respect to such Notes. With respect to the foregoing clause (bii), the Issuer's ’s obligations in Sections 3.032.02, 3.042.03, 3.052.04, 3.062.05, 3.072.06, 10.012.07, 10.092.08, 6.072.09, 6.102.14, 6.114.01, 12.044.02, 12.05 7.07, 7.08, 8.04, 8.05 and 12.06 8.06 with respect to such Notes shall survive until the Securities have matured or have been redeemedsuch Notes are no longer outstanding. Thereafter, only the Issuer's ’s obligations with respect to such Notes in Sections 6.077.07, 12.05 8.04, 8.05 and 12.06 8.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's ’s obligations under the Securities Notes and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture with respect to such Notes except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (Smurfit-Stone Container Enterprises Inc)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
(a) all Securities previously authenticated and delivered (other than destroyed, lost or stolen Securities that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereunder; or
(i) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, and interest on such Securities to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.,
Appears in 1 contract
Sources: Indenture (RSL Communications LTD)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each This Indenture shall cease to be of further effect (except that the Issuer Issuers' and the Guarantor may terminate its Subsidiary Guarantors' obligations under Section 7.7 and 8.4 and the Securities Issuers' Trustee's and this Indenture if:
(aPaying Agent's obligations under Section 8.3 shall survive) when all Securities previously outstanding Notes theretofore authenticated and issued have been delivered (other than destroyed, lost or stolen Securities that Notes which have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05paid) have been delivered to the Trustee for cancelation cancellation and the Issuer has Issuers have paid all sums payable by it the Issuers hereunder; or. In addition, the Issuers may terminate all of their obligations under this Indenture if:
(i) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii1) the Issuer Issuers irrevocably deposits deposit in trust with the Trustee during such one-year periodor at the option of the Trustee, with a trustee reasonably satisfactory to the Trustee and the Issuers under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. United States Government Obligations sufficient (in the opinion of a nationally recognized firm of as certified by an independent public accountants expressed in a written certification thereof delivered to accountant designated by the Trustee), without consideration of any reinvestment of any interest thereon, Issuers) to pay principal, premium, if any, principal and interest on such Securities the Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it them hereunder, provided that (iiii) the trustee of the irrevocable trust shall have been irrevocably instructed to pay such money or the proceeds of such United States Government Obligations to the Trustee and (ii) the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such United States Government Obligations to the payment of said principal and interest with respect to the Notes;
(2) the Issuers and the Subsidiary Guarantors deliver to the Trustee an Officers' Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture have been complied with, and an Opinion of Counsel to the same effect; and
(3) no Event of Default or event (including such deposit) which, with notice or lapse of time, or both, would become an Event of Default with respect to the Securities Notes shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under. Then, this Indenture or any other agreement or instrument shall cease to which be of further effect (except as provided this paragraph), and the Guarantor or Trustee, on demand of the Issuer is a party or by which it is boundIssuers, (v) shall execute proper instruments acknowledging confirmation of and discharge under this Indenture. The Issuers may make the deposit only if at Article 10 hereof does not prohibit such time the Securities are listed on a national securities exchangepayment. However, the Securities will not be delisted as a result of such depositIssuers' obligations in Section 2.3, defeasance 2.4, 2.5, 2.6, 2.7, 4.1, 7.7, 7.8, 8.3 and discharge8.4, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate Trustee's and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the IssuerPaying Agent's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 Section 8.3 shall survive until the Securities have matured or have been redeemedNotes are no longer outstanding. Thereafter, only the IssuerIssuers', Trustee's and Paying Agents' obligations in Sections 6.07, 12.05 and 12.06 Section 8.3 shall survive. After any such irrevocable depositdeposit made pursuant to this Section 8.1 and satisfaction of the other conditions set forth herein, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's Issuers' and the Subsidiary Guarantors' obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above. In order to have money available on a payment date to pay principal or interest on the Notes, the United States Government Obligations shall be payable as to principal or interest at least one Business Day before such payment date in such amounts as will provide the necessary money. United States Government Obligations shall not be callable at the issuer's options. The Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the United States Government Obligations deposited pursuant to this Section 8.1 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Notes.
Appears in 1 contract
Sources: Indenture (Foamex Capital Corp)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.019.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities Notes and this Indenture if:
(ai) all Securities such Notes previously authenticated and delivered (other than destroyed, lost or stolen Securities Notes that have been replaced or Securities such Notes that are paid pursuant to Section 3.01 or such Notes for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.059.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid all sums payable by it them hereunder; or
(iii) all (A) such Securities Notes mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (iiB) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities holders for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, and interest on such Securities Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iiiC) no Default or Event of Default with respect to the Securities such Notes shall have occurred and be continuing on the date of such deposit, (ivD) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, bound and (viE) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (ai), the Issuer's obligations under Section 6.07 5.06 shall survive. With respect to the foregoing clause (bii), the Issuer's obligations in Article 2, Sections 3.033.01, 3.043.02, 3.055.06, 3.065.09, 3.079.04, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 9.05 and 12.06 9.06 shall survive until the Securities have matured or have been redeemedsuch Notes are no longer outstanding. Thereafter, only the Issuer's obligations in Sections 6.075.06, 12.05 9.05 and 12.06 9.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities such Notes and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (Vitro Sa De Cv)
Termination of Issuer’s Obligations. Except as otherwise provided The Issuers may terminate their and the Subsidiary Guarantors' substantive obligations in this Section 12.01, each respect of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
(a) by delivering all outstanding Securities previously authenticated and delivered (other than destroyed, lost or stolen Securities that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid paying all sums payable by them on account of principal of and interest on all Securities or otherwise. In addition to the foregoing, the Issuers may, provided that no Default or Event of Default has occurred and is continuing or would arise therefrom (or, with respect to a Default or Event of Default specified in Section 6.01(8) or (9), any time on or prior to the 91st calendar day after the date of such deposit (it hereunder; or
being understood that this condition shall not be deemed satisfied until after such 91st day)) terminate their and the Subsidiary Guarantors' substantive obligations in respect of the Securities (except for their obligations to pay the principal of and interest on the Securities to their Maturity Date and the Subsidiary Guarantors' guarantee thereof) by (i) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably deposits in trust depositing with the Trustee during such one-year periodTrustee, under the terms of an irrevocable trust agreement in form satisfactory agreement, money or direct non-callable obligations of the United States of America for the payment of which the full faith and credit of the United States is pledged ("United States Government Obligations") sufficient (without reinvestment) to pay all remaining Indebtedness on the Securities to their Maturity Date, (ii) delivering to the Trustee, as trust funds solely for Trustee either an Opinion of Counsel or a ruling directed to the benefit of Trustee from the Internal Revenue Service to the effect that the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, and interest on such Securities to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted recognize income, gain or loss for federal income tax purposes solely as a result of such depositdeposit and termination of obligations, defeasance and discharge(iii) delivering to the Trustee an Opinion of Counsel to the effect that the Issuers' exercise of their option under this paragraph will not result in any of the Issuers, the Trustee or the trust created by the Issuers' deposit of funds pursuant to this provision becoming or being deemed to be an "investment company" under the Investment Company Act of 1940, as amended, and (viiv) the Issuer has delivered delivering to the Trustee an Officers' Certificate and an Opinion of Counsel, in Counsel each case stating that compliance with all conditions precedent provided for herein relating herein. In addition, the Issuers may, provided that no Default or Event of Default has occurred and is continuing or would arise therefrom (or, with respect to a Default or Event of Default specified in Section 6.01(8) or (9), any time on or prior to the satisfaction 91st calendar day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 91st day)) terminate all of their and discharge the Subsidiary Guarantors' substantive obligations in respect of the Securities (including their obligations to pay the principal of and interest on the Securities and the Subsidiary Guarantors' guarantee thereof) by (i) depositing with the Trustee, under the terms of an irrevocable trust agreement, money or United States Government Obligations sufficient (without reinvestment) to pay all remaining indebtedness on the Securities to their Maturity Date, (ii) delivering to the Trustee either a ruling directed to the Trustee from the Internal Revenue Service to the effect that the Holders of the Securities will not recognize income, gain or loss for federal income tax purposes solely as a result of such deposit and termination of obligations or an Opinion of Counsel based upon such a ruling addressed to the Trustee or a change in the applicable Federal tax law since the date of this Indenture have been complied with. With respect to such effect, (iii) delivering to the foregoing clause (a)Trustee an Opinion of Counsel to the effect that the Issuers' exercise of their option under this paragraph will not result in any of the Issuers, the Issuer's obligations Trustee or the trust created by the Issuers' deposit of funds pursuant to this provision becoming or being deemed to be an "investment company" under Section 6.07 shall survive. With respect the Investment Company Act of 1940, as amended, and (iv) delivering to the Trustee an Officers' Certificate and an Opinion of Counsel each stating compliance with all conditions precedent provided for herein. Notwithstanding the foregoing clause (b)paragraph, the Issuer's Issuers' obligations in Sections 3.032.03, 3.042.05, 3.052.06, 3.062.07, 3.074.01 (but not with respect to termination of substantive obligations pursuant to the third sentence of the foregoing paragraph), 10.014.02, 10.097.07, 6.077.08, 6.10, 6.11, 12.04, 12.05 9.03 and 12.06 9.04 shall survive until the Securities have matured or have been redeemedare no longer outstanding. Thereafter, only Thereafter the Issuer's Issuers' obligations in Sections 6.077.07, 12.05 9.03 and 12.06 9.04 shall survive. After any such delivery or irrevocable depositdeposit and delivery of an Officers' Certificate and Opinion of Counsel, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's Issuers' and the Subsidiary Guarantors' obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (Frontiervision Holdings Capital Ii Corp)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.018.01, each of the Issuer and the Guarantor may terminate its and the Guarantors’ obligations under the Securities and this Indenture and the Notes and the Liens in favor of the Collateral Agent securing the Notes under the Security Documents if:
(1) either:
(a) all Securities previously the Notes theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation cancellation; or
(b) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable, and the Issuer has paid all sums payable by it hereunder; or
(i) all such Securities mature within one year irrevocably deposited or all of them are caused to be called for redemption within one year under arrangements satisfactory deposited with the Trustee funds in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for giving the notice of redemptioncancellation, (ii) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principalprincipal of, premium, if any, and interest on such Securities the Notes to the date of maturity or redemption, as the case may be, and together with irrevocable instructions from the Issuer directing the Trustee to pay apply such funds to the payment thereof at maturity or redemption, as the case may be;
(2) the Issuer has paid all other sums payable under this Indenture by it hereunderthe Issuer; and
(3) the Issuer, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date upon request for written acknowledgment of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance satisfaction and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case Counsel stating that all conditions precedent provided for herein under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a1), the Issuer's ’s and the Guarantors’ obligations under Section 6.07 Sections 7.07 and 14.08 shall survivesurvive such satisfaction and discharge. With respect to the foregoing clause (b2), the Issuer's ’s and the Guarantors’ obligations in Sections 3.032.04, 3.042.05, 3.052.06, 3.062.07, 3.072.08, 10.012.10, 10.092.13, 6.074.01, 6.104.02, 6.114.13, 12.047.07, 12.05 7.08, 8.05, 8.06 and 12.06 14.08 shall survive until the Securities have matured or have been redeemedNotes are no longer outstanding. Thereafter, only the Issuer's ’s and the Guarantors’ obligations in Sections 6.077.07, 12.05 8.05, 8.06 and 12.06 14.08 shall survive. After any such irrevocable deposit, the Trustee upon written request of the Issuer shall acknowledge in writing the discharge of the Issuer's ’s and the Guarantors’ obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee Notes and this Indenture, except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (Manitowoc Co Inc)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each (a) This Indenture shall cease to be of further effect with respect to the Securities of a Series (except that all obligations of the Issuer under Section 7.6, the Trustee’s and Paying Agent’s obligations under Section 8.3 and the Guarantor may terminate its obligations rights, powers, protections and privileges accorded the Trustee under Article VII shall survive), and the Trustee, on written demand of the Issuer shall execute instruments acknowledging the satisfaction and discharge of this Indenture with respect to the Securities and this Indenture ifof such Series, when:
(a1) either
(A) all outstanding Securities previously of such Series theretofore authenticated and delivered issued (other than destroyed, lost or stolen Securities that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05paid) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereundercancellation; or
(B) all outstanding Securities of such Series not theretofore delivered to the Trustee for cancellation:
(i) all such Securities mature have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year or all of them year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving the of notice of redemptionredemption by the Trustee in the name, and at the expense, of the Issuer, and, in the case of clause (i), (ii) or (iii) above, the Issuer has irrevocably deposits in trust deposited or caused to be deposited with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory as funds (immediately available to the TrusteeHolders in the case of clause (i)) in trust for such purpose (x) cash in an amount, or (y) Government Obligations, maturing as trust funds solely for to principal and interest at such times and in such amounts as will ensure the benefit availability of cash in an amount or (z) a combination thereof which will be sufficient, in the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient opinion (in the opinion case of (y) or (z)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay and discharge the entire indebtedness on the Securities of such Series for principal and interest to the date of such deposit (in the case of Securities which have become due and payable) or for principal, premium, if any, and interest on such Securities to maturity the Stated Maturity or redemptionredemption date, as the case may be; or
(C) the Issuer has properly fulfilled such other means of satisfaction and discharge applicable to the Securities of such Series;
(2) the Issuer has paid or caused to be paid all other sums payable by it hereunder with respect to the Securities of such Series; and
(3) the Issuer has delivered to the Trustee an Officer’s Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture with respect to the Securities of such Series have been complied with, together with an Opinion of Counsel to the same effect.
(b) Unless this Section 8.1(b) is specified as not being applicable to Securities of a Series as contemplated by Section 2.2, the Issuer may terminate certain of its obligations under this Indenture (“covenant defeasance”) with respect to the Securities of a Series if:
(1) either the Issuer has irrevocably deposited or caused 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 the benefit of the Holders of Securities of such Series, (i) money, or (ii) Government Obligations with respect to such Series, maturing as to principal and interest at such times and in such amounts as will ensure the availability of money in the currency in which payment of the Securities of such Series is to be made in an amount or (iii) a combination thereof, that is sufficient, in the opinion (in the case of (ii) and (iii)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal of and premium (if any) and interest on all Securities of such Series on each date that such principal, premium (if any) or interest is due and payable and (at the Stated Maturity thereof or upon redemption as provided in Section 8.1(e)) to pay all other sums payable by it hereunder; provided that the Trustee shall have been irrevocably instructed to apply such money and/or the proceeds of such Government Obligations to the payment of said principal, premium (iiiif any) and interest with respect to the Securities of such Series as the same shall become due;
(2) the Issuer has delivered to the Trustee an Officer’s Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture with respect to the Securities of such Series have been complied with, and an Opinion of Counsel to the same effect;
(3) no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit, deposit (iv) 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);
(4) the Issuer shall have delivered to the Trustee an Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee or a tax ruling to the effect that the Holders will not result in a breach recognize income, gain or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted loss for Federal income tax purposes as a result of the Issuer’s exercise of its option under this Section 8.1(b) 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 depositoption had not been exercised; and
(5) the Issuer has complied with any additional conditions specified pursuant to Section 2.2 to be applicable to the discharge of Securities of such Series pursuant to this Section 8.1. In such event, defeasance and dischargethis Indenture shall cease to be of further effect (except as set forth in this paragraph), and the Trustee, on written demand of the Issuer, shall execute instruments acknowledging satisfaction and discharge under this Indenture. However, the Issuer’s obligations in Sections 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 7.6, 7.7 and this Article VIII, the Trustee’s and Paying Agent’s obligations in Section 8.3 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive until all Securities of such Series are no longer outstanding. Thereafter, only the obligations of the Issuer in Section 7.6 and the Trustee’s and Paying Agent’s obligations in Section 8.3 shall survive with respect to Securities of such Series. In order to have money available on a payment date to pay principal of or premium (viif any) or interest on the Securities, the Government Obligations shall be payable as to principal or interest on or before such payment date in such amounts as will provide the necessary money. Government Obligations shall not be callable at the Issuer’s option.
(c) If the Issuer has previously complied or is concurrently complying with the conditions set forth in Section 8.1(b) (other than any additional conditions specified pursuant to Section 2.2 that are expressly applicable only to covenant defeasance) with respect to Securities of a Series, then unless this Section 8.1(c) is specified as not being applicable to Securities of such Series as contemplated by Section 2.2, the Issuer may elect to be discharged (“legal defeasance”) from its obligations to make payments with respect to Securities of such Series, if:
(1) unless otherwise specified with respect to Securities of such Series as contemplated by Section 2.2, the Issuer has delivered to the Trustee an Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee to the effect referred to in Section 8.1(b)(4) with respect to such legal defeasance, which opinion is based on (i) a private ruling of the Internal Revenue Service addressed to the Issuer, (ii) a published ruling of the Internal Revenue Service or (iii) a change in the applicable federal income tax law (including regulations) after the date of this Indenture; the Issuer has complied with any other conditions specified pursuant to Section 2.2 to be applicable to the legal defeasance of Securities of such Series pursuant to this Section 8.1(c); and
(2) the Issuer has delivered to the Trustee an Officers' Certificate a Company Request requesting such legal defeasance of the Securities of such Series and an Opinion of Counsel, in each case Officer’s Certificate stating that all conditions precedent provided for herein relating with respect to such legal defeasance of the satisfaction and discharge Securities of this Indenture such Series have been complied with, together with an Opinion of Counsel to the same effect. With In such event, the Issuer will be discharged from its obligations under this Indenture and the Securities of such Series to pay principal of and premium (if any) and interest on Securities of such Series, the Issuer’s obligations under Sections 4.1 and 5.1 shall terminate with respect to such Securities, and the entire indebtedness of the Issuer evidenced by such Securities shall be deemed paid and discharged.
(d) If and to the extent additional or alternative means of satisfaction, discharge or defeasance of Securities of a Series are specified to be applicable to such Series as contemplated by Section 2.2, the Issuer may terminate any or all of its obligations under this Indenture with respect to the foregoing clause Securities of a Series and any or all of its obligations under the Securities of such Series if it fulfills such other means of satisfaction and discharge as may be so specified, as contemplated by Section 2.2, to be applicable to the Securities of such Series.
(e) If Securities of any Series subject to subsections (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations (c) or (d) of this Section 8.1 are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured accordance with any mandatory or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable depositoptional sinking fund provisions, the terms of the applicable trust arrangement shall provide for such redemption, and the Issuer shall make such arrangements as are reasonably satisfactory to the Trustee upon written request shall acknowledge for the giving of notice of redemption in writing the discharge name, and at the expense, of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (CalAmp Corp.)
Termination of Issuer’s Obligations. Except This Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a) either (i) all Securities previously the Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereunder; or
cancellation or (iii) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving the of a notice of redemption, (ii) redemption or otherwise and the Issuer or any Subsidiary Guarantor has irrevocably deposits in trust deposited or caused to be irrevocably deposited with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds in trust solely for the benefit of the Holders of such Securities for that purpose, money or cash in U.S. dollars, U.S. Government Obligations Obligations, or a combination thereof, in such 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), without consideration of any reinvestment of any interest thereoninterest, to pay principaland discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption together with irrevocable instructions from the Issuer directing the Trustee to apply such Securities funds to the payment thereof at maturity or redemption, as the case may be, and to pay ; (b) the Issuer has paid all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which by the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, Issuer; and (vic) the Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case Counsel stating that all conditions precedent provided for herein under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. With ; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer.
(1) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due, (2) the Issuer’s obligations with respect to the foregoing Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (3) the rights, powers, trust, duties and immunities of the Trustee and the Issuer’s obligations in connection therewith and (4) the Legal Defeasance provisions of this Section 8.1. In addition, the Issuer may, at its option and at any time, elect to terminate its obligations with respect to covenants contained in Sections 4.4, 4.5, 4.8 and 4.10 through 4.19 and the operation of clauses (6), (7) (with respect to Significant Subsidiaries), (8) and (9) of Section 6.1 and the limitations described in clause (a), 3) of the Issuer's first paragraph of Section 5.1 (“Covenant Defeasance”) and thereafter any omission to comply with such obligations under Section 6.07 shall survive. With not constitute a Default or Event of Default with respect to the foregoing Notes. The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. In the event of Legal Defeasance, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. In the event of Covenant Defeasance, payment of the Notes may not be accelerated because of an Event of Default specified in clause (b4), the Issuer's obligations in Sections 3.03(5), 3.04(6), 3.05(7) (with respect to only to Significant Subsidiaries), 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured (8) or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge (9) of Section 6.1 or because of the Issuer's obligations under failure of the Securities and this IndentureIssuer to comply with clause (3) of the first paragraph of Section 5.1. In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the Guarantor's obligations under Notes on the Guarantee and this Indenturestated date for payment thereof or on the applicable Redemption Date, except for those surviving obligations specified above.as the case may be;
Appears in 1 contract
Sources: Indenture (Rosetta Resources Inc.)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
(a) This Indenture and the other Note Documents will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Indenture) as to all Securities previously outstanding Notes, and all Note Liens will be released, when (a) either (i) all the Notes theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation cancellation or (ii) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving of a notice of redemption or otherwise and the Issuer has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust solely for such purpose, cash in U.S. dollars or U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the Note Obligations with respect to the Notes not theretofore delivered to the Trustee for cancellation, for principal of and accrued interest on the Notes to the date of maturity or redemption together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be; (b) the Issuer has paid all other sums payable under the Note Obligations by it hereunderthe Issuer; or
and (ic) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory the Issuer has delivered to the Trustee for giving an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the notice satisfaction and discharge of redemptionthis Indenture have been complied with; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer.
(b) The Issuer may, at its option and at any time, elect to have its obligations discharged with respect to the Note Obligations and cause the release of all Note Liens (“Legal Defeasance”). Such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the Note Obligations that are represented by the
(1) the rights of Holders to receive payments in respect of the principal of and interest on the Notes when such payments are due, (ii2) the Issuer’s Obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (3) the rights, powers, trust, duties and immunities of the Trustee and the Issuer’s Obligations in connection therewith and (4) the Legal Defeasance provisions of this Section 8.1. In addition, the Issuer may, at its option and at any time, elect to terminate its Note Obligations and cause the release of all Note Liens with respect to covenants contained in Sections 4.8, 4.10 through 4.15 and Article V and the operation of clauses (6), (7) (with respect to Significant Subsidiaries), (8) and (10) of Section 6.1 and the limitations described in clause (2) of Section 5.1(a) and Section 5.1(c) (“Covenant Defeasance”) and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Notes. The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. In the event of Legal Defeasance, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. In the event of Covenant Defeasance, payment of the Notes may not be accelerated because of an Event of Default specified in clause (4), (5), (6), (7) (with respect to Significant Subsidiaries), (8) or (10) of Section 6.1 or because of the failure of the Issuer to comply with clause (2) of Section 5.1(a) and Section 5.1(c).
(c) In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposits in trust deposit with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely in trust, for the benefit of the Holders of such Securities for that purposecash in United States dollars, money or non-callable U.S. Government Obligations sufficient (Obligations, or a combination thereof, in such 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), without consideration of any reinvestment of any interest thereonaccountants, to pay principal, premium, if any, the principal of and interest on such Securities to maturity the Notes on the stated date for payment thereof or redemptionon the applicable Redemption Date, as the case may be;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to pay all other sums payable by it hereunderfederal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(iii3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant 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 Covenant Defeasance had not occurred;
(4) no Default or Event of Default with respect Default, of which the Trustee is deemed to the Securities have notice, shall have occurred and be continuing on the date of such deposit or insofar as Events of Default under Section 6.1(7)(a) or (b) from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit, ;
(iv5) such deposit will Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which the Guarantor Issuer or the Issuer any of its Restricted Subsidiaries is a party or by which it the Issuer or any of its Restricted Subsidiaries is bound, ;
(v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi6) the Issuer has 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 preferring the Holders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(7) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein or relating to the satisfaction and discharge of this Indenture Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with. With respect ; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer; and
(8) the Issuer shall have delivered to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect Trustee an Opinion of Counsel to the foregoing clause (b), effect that after the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until 91st day following the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing trust funds will not be subject to the discharge effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (GMX Resources Inc)
Termination of Issuer’s Obligations. Except This First Supplemental Indenture will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
First Supplemental Indenture) as to all outstanding Notes when (a) either (i) all Securities previously the Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation cancellation or (ii) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving of a notice of redemption (including a notice of Special Mandatory Redemption) or otherwise and the Issuer or any Subsidiary Guarantor has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust solely for such purpose, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be; (b) the Issuer has paid all other sums payable under this First Supplemental Indenture by it hereunderthe Issuer; or
and (ic) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory the Issuer has delivered to the Trustee for giving an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent under this First Supplemental Indenture relating to the notice satisfaction and discharge of redemptionthis First Supplemental Indenture have been complied with; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer.
(1) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due, (ii2) the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (3) the rights, powers, trust, duties and immunities of the Trustee and the Issuer’s obligations in connection therewith and (4) the Legal Defeasance provisions of this Section 8.1. In addition, the Issuer may, at its option and at any time, elect to terminate its obligations with respect to covenants contained in Sections 4.4, 4.5, 4.8 and 4.10 through 4.18 and the operation of clauses (6), (7) (with respect to Significant Subsidiaries), (8) and (9) of Section 6.1 and the limitations described in clause (3) of the first paragraph of Section 5.1 (“Covenant Defeasance”) and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Notes. The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of
1. In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposits in trust deposit with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely in trust, for the benefit of the Holders of such Securities for that purposecash in U.S. dollars, money or U.S. Government Obligations sufficient (Obligations, or a combination thereof, in such 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), without consideration of any reinvestment of any interest thereonaccountants, to pay principalthe principal of, premium, if any, and interest on such Securities to maturity the Notes on the stated date for payment thereof or redemptionon the applicable Redemption Date, as the case may be, and to pay all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b), the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.;
Appears in 1 contract
Sources: First Supplemental Indenture (Rosetta Resources Inc.)
Termination of Issuer’s Obligations. Except This Indenture, the Guarantees and the Security Documents will be discharged and will cease to be of further effect (except as otherwise to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
Indenture) as to all outstanding Notes when (a) either (i) all Securities previously Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities that destroyed Notes which have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust by the Issuer or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation cancellation or (ii) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable, or are to become due and payable within 180 days, and the Issuer has paid all sums payable by it hereunder; or
(i) all such Securities mature within one year irrevocably deposited or all of them are caused to be called for redemption within one year under arrangements satisfactory deposited with the Trustee funds in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for giving the notice of redemptioncancellation, (ii) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principalprincipal of, premium, if any, and interest on the Notes to the date of deposit together with irrevocable written instructions in the form of an Officers' Certificate from the Issuer directing the Trustee to apply such Securities funds to the payment thereof at maturity or redemption, as the case may be, and to pay ; (b) the Issuer has paid all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which by the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, Issuer; and (vic) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case Counsel stating that all conditions precedent provided for herein under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with; PROVIDED, HOWEVER, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer. With The Issuer may, at its option and at any time, elect to have its obligations and the corresponding obligations of the Subsidiary Guarantors discharged with respect to the foregoing clause outstanding Notes ("LEGAL DEFEASANCE"). Such Legal Defeasance means that the Issuer and the Subsidiary Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, and satisfied all of their obligations with respect to the Notes, except for (a)) the rights of Holders to receive payments from the trust referred to below in respect of the principal of, premium, if any, and interest on the Notes when such payments are due, (b) the Issuer's obligations under Section 6.07 shall survive. With with respect to the foregoing clause Notes concerning issuing temporary Notes, registration of Notes, replacement of mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (b)c) the rights, powers, trust, duties and immunities of the Trustee and the Issuer's obligations in connection therewith and (d) the Legal Defeasance provisions of this Section 8.01. In addition, the Issuer may, at its option and at any time, elect to have the obligations of the Issuer and the Subsidiary Guarantors, if any, released with respect to covenants contained in Sections 3.034.04, 3.044.05, 3.054.06(b), 3.064.07, 3.074.08 and 4.10 through 4.21, 10.014.23 and 4.25 through 4.33 and Articles Five and Twelve ("COVENANT DEFEASANCE") and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Notes. In the event of Covenant Defeasance, 10.09those events described under Section 6.01 (except those events described in Section 6.01(a), 6.07(b), 6.10(f), 6.11(g) and (h) as it relates to the Guarantees) will no longer constitute an Event of Default with respect to the Notes. In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuer must irrevocably deposit with the Trustee, 12.04in trust, 12.05 for the benefit of the Holders U.S. Legal Tender, non-callable U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and 12.06 interest on the Notes on the stated date for payment thereof or on the applicable Redemption Date, as the case may be;
(b) in the case of Legal Defeasance, the Issuer shall survive until have delivered to the Securities have matured Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (i) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal 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 redeemed. Thereafterthe case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, only the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant 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 Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or insofar as Events of Default under Section 6.01(f) or (g) from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture or any other agreement or instrument to which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound;
(f) the Issuer shall 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 over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(g) the Issuer shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with; PROVIDED, HOWEVER, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer's obligations in Sections 6.07, 12.05 and 12.06 ; and
(h) the Issuer shall survive. After any such irrevocable have delivered to the Trustee an Opinion of Counsel to the effect that after the 91st day following the deposit, the Trustee upon written request shall acknowledge in writing trust funds will not be subject to the discharge effect of the Issuer's obligations under the Securities and this Indentureany applicable bankruptcy, and the Guarantor's obligations under the Guarantee and this Indentureinsolvency, except for those surviving obligations specified abovereorganization or similar laws affecting creditors' rights generally.
Appears in 1 contract
Sources: Indenture (Abraxas Petroleum Corp)
Termination of Issuer’s Obligations. Except as otherwise provided Subject to the provisions of Article Eight, the Issuers may terminate their substantive obligations in this Section 12.01, each respect of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
(a) by delivering all outstanding Securities previously authenticated and delivered (other than destroyed, lost or stolen Securities that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid paying all sums payable by it hereunder; on account of principal of and interest on all Securities or otherwise. In addition to the foregoing, subject to the provisions of Article Eight with respect to the creation of the defeasance trust provided for in the following clause (i), the Issuers may, provided that no Default or Event of Default has occurred and is continuing or would arise therefrom (or
, with respect to a Default or Event of Default specified in Section 6.01(vii) or (viii), occurs at any time on or prior to the 123rd calendar day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 123rd day)) and provided that no default under any Senior Indebtedness would result therefrom, terminate their substantive obligations in respect of Article Four (other than Sections 4.01, 4.02, 4.07, 4.09 and 4.11) and Article Five hereof and any Event of Default specified in Section 6.01 (iii), (iv), (v) or (vi) by (i) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably deposits in trust depositing with the Trustee during such one-year periodTrustee, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purposeagreement, money or U.S. United States Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, and interest on such Securities to maturity or redemption, as the case may be, and reinvestment) to pay all other sums payable by it hereunderremaining Indebtedness on the Securities, (iiiii) no Default or Event of Default with respect delivering to the Securities shall have occurred and be continuing on Trustee either an Opinion of Counsel or a ruling directed to the date of such deposit, (iv) such deposit Trustee from the Internal Revenue Service to the effect that the Holders will not result in a breach recognize income, gain or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted loss for federal income tax purposes as a result of such depositdeposit and termination of obligations, defeasance and discharge(iii) delivering to the Trustee an Opinion of Counsel to the effect that the Issuers' exercise of the option under this Section 9.01 will not result in any of the Issuers, the Trustee or the trust created by the Issuers' deposit of funds pursuant to this provision becoming or being deemed to be an "investment company" under the Investment Company Act of 1940, as amended (the "Investment Company Act"), and (viiv) the Issuer has delivered delivering to the Trustee an Officers' Certificate and an Opinion of Counsel, in Counsel each case stating that compliance with all conditions precedent provided for herein relating herein. In addition, subject to the satisfaction provisions of Article Eight with respect to the creation of the defeasance trust provided for in the following clause (i), the Issuers may, provided that no Default or Event of Default has occurred and discharge is continuing or would arise therefrom (or, with respect to a Default or Event of Default specified in Section 6.01(vii) or (viii), occurs at any time on or prior to the 123rd calendar day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 123rd day)) and provided that no default under any Senior Indebtedness would arise therefrom, terminate all of their substantive obligations in respect of the Securities (including its obligations to pay the principal of and interest on the Securities) by (i) depositing with the Trustee, under the terms of an irrevocable trust agreement, money or United States Government Obligations sufficient (without reinvestment) to pay all remaining Indebtedness on the Securities, (ii) delivering to the Trustee either a ruling directed to the Trustee from the Internal Revenue Service to the effect that the Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and termination of obligations or an Opinion of Counsel addressed to the Trustee based upon such a ruling or based on a change in the applicable Federal tax law since the date of this Indenture have been complied with. With respect to such effect, (iii) delivering to the foregoing clause (a)Trustee an Opinion of Counsel to the effect that the exercise of the option under this Section 9.01 will not result in any of the Issuers, the Issuer's obligations Trustee or the trust created by the deposit of funds pursuant to this provision becoming or being deemed to be an "investment company" under Section 6.07 shall survive. With respect the Investment Company Act and (iv) delivering to the Trustee an Officers' Certificate and an Opinion of Counsel each stating compliance with all conditions precedent provided for herein. Notwithstanding the foregoing clause (b)paragraph, the Issuer's Issuers' obligations in Sections 3.032.02, 3.042.03, 3.052.04, 3.062.05, 3.072.06, 10.012.07, 10.092.10, 6.072.12, 6.102.13 and 4.01 (but not with respect to termination of substantive obligations pursuant to the third sentence of the foregoing paragraph), 6.114.02, 12.047.07, 12.05 7.08, 9.03 and 12.06 9.04 shall survive until the Securities have matured or have been redeemedare no longer outstanding. Thereafter, only Thereafter the Issuer's Issuers' obligations in Sections 6.077.07, 12.05 9.03 and 12.06 9.04 shall survive. After any such delivery or irrevocable depositdeposit and delivery of an Officers' Certificate and Opinion of Counsel, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's Issuers' obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above. The Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the United States Government Obligations deposited pursuant to this Section 9.01 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Securities.
Appears in 1 contract
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
(a) This Indenture and the other Note Documents will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Indenture) as to all Securities previously outstanding Notes, and all Note Liens will be released, when (a) either (i) all the Notes, theretofore authenticated and delivered (other than destroyedexcept lost, lost stolen or stolen Securities destroyed Notes that have been replaced or Securities paid and Notes for whose payment money or securities have has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 12.05Issuer or discharged from such trust) have been delivered to the Trustee for cancelation cancellation or (ii) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving of a notice of redemption or otherwise and the Issuer or any Guarantor has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust solely for such purpose, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the Note Obligations with respect to the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be; (b) the Issuer has paid all other sums payable under the Note Obligations by it hereunderthe Issuer; or
and (ic) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory the Issuer has delivered to the Trustee for giving an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the notice satisfaction and discharge of redemptionthis Indenture have been complied with; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer.
(b) The Issuer may, at its option and at any time, elect to have its obligations and the corresponding Obligations of the Guarantors discharged with respect to the Note Obligations and cause the release of all Note Liens (“Legal Defeasance”). Such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the Note Obligations which are represented by the outstanding Notes, and satisfied all of its Obligations with respect to the Notes, except for: (1) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due, (ii2) the Issuer’s Obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments, (3) the rights, powers, trust, duties and immunities of the Trustee and the Issuer’s Obligations in connection therewith and (4) the Legal Defeasance provisions of this Section 8.1. In addition, the Issuer may, at its option and at any time, elect to terminate its Note Obligations and cause the release of all Note Liens with respect to covenants contained in Sections 4.8, and 4.10 through 4.20 and Article V and the operation of clauses (6), (7) (with respect to Significant Subsidiaries), (8), (9) and (10) of Section 6.1 and the limitations described in clauses (2), (3) and (4) of Section 5.1(a) and Section 5.1(c) (“Covenant Defeasance”) and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Notes. The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. In the event of Legal Defeasance, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. In the event of Covenant Defeasance, payment of the Notes may not be accelerated because of an Event of Default specified in clause (4), (5), (6), (7) (with respect to Significant Subsidiaries), (8), (9) or (10) of Section 6.1 or because of the failure of the Issuer to comply with clauses (2), (3) and (4) of Section 5.1(a) and Section 5.1(c).
(c) If the Issuer exercises its Legal Defeasance option or its Covenant Defeasance option, each Guarantor will also be released from all of its Note obligations. In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposits in trust deposit with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely in trust, for the benefit of the Holders of such Securities for that purposecash in United States dollars, money or non-callable U.S. Government Obligations sufficient (Obligations, or a combination thereof, in such 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), without consideration of any reinvestment of any interest thereonaccountants, to pay principalthe principal of, premium, if any, and interest on such Securities to maturity the Notes on the stated date for payment thereof or redemptionon the applicable Redemption Date, as the case may be;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to pay all other sums payable by it hereunderfederal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(iii3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant 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 Covenant Defeasance had not occurred;
(4) no Default or Event of Default with respect Default, of which the Trustee is deemed to the Securities have notice, shall have occurred and be continuing on the date of such deposit or insofar as Events of Default under Section 6.1(7)(a) or (b) from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit, ;
(iv5) such deposit will Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under this Indenture or any other agreement or instrument to which the Guarantor Issuer or the Issuer any of its Restricted Subsidiaries is a party or by which it the Issuer or any of its Restricted Subsidiaries is bound, ;
(v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, and (vi6) the Issuer has 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 preferring the Holders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or any Guarantor or others;
(7) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein or relating to the satisfaction and discharge of this Indenture Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with. With respect ; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer; and
(8) the Issuer shall have delivered to the foregoing clause (a), the Issuer's obligations under Section 6.07 shall survive. With respect Trustee an Opinion of Counsel to the foregoing clause (b), effect that after the Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until 91st day following the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing trust funds will not be subject to the discharge effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer's obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (GMX Resources Inc)
Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.019.01, each of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
(ai) all such Securities previously authenticated and delivered (other than destroyed, lost or stolen Securities that have been replaced or such Securities that are paid pursuant to Section 3.01 or such Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.059.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid all sums payable by it them hereunder; or
(iii) all (A) such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (iiB) the Issuer irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities holders for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, and interest on such Securities to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iiiC) no Default or Event of Default with respect to the such Securities shall have occurred and be continuing on the date of such deposit, (ivD) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities they are listed on a national securities exchange, the Securities will not be delisted as a result of such deposit, defeasance and discharge, bound and (viE) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (ai), the Issuer's obligations under Section 6.07 5.06 shall survive. With respect to the foregoing clause (bii), the Issuer's obligations in Article 2, Sections 3.033.01, 3.043.02, 3.055.06, 3.065.09, 3.079.04, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 9.05 and 12.06 9.06 shall survive until the such Securities have matured or have been redeemedare no longer outstanding. Thereafter, only the Issuer's obligations in Sections 6.075.06, 12.05 9.05 and 12.06 9.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's obligations under the such Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above.
Appears in 1 contract
Sources: Indenture (Vitro Sa De Cv)
Termination of Issuer’s Obligations. Except as otherwise provided The Issuers may terminate their and the Subsidiary Guarantors' substantive obligations in this Section 12.01, each respect of the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
(a) by delivering all outstanding Securities previously authenticated and delivered (other than destroyed, lost or stolen Securities that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05) have been delivered to the Trustee for cancelation cancellation and the Issuer has paid paying all sums payable by them on account of principal of and interest on all Securities or otherwise. In addition to the foregoing, the Issuers may, provided that no Default or Event of Default has occurred and is continuing or would arise therefrom (or, with respect to a Default or Event of Default specified in Section 6.01(8) or (9), any time on or prior to the 91st calendar day after the date of such deposit (it hereunder; or
being understood that this condition shall not be deemed satisfied until after such 91st day)) terminate their and the Subsidiary Guarantors' substantive obligations in respect of the Securities (except for their obligations to pay the principal of and inter- est on the Securities to their Maturity Date and the Subsidiary Guarantors' guarantee thereof) by (i) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably deposits in trust depositing with the Trustee during such one-year periodTrustee, under the terms of an irrevocable trust agreement in form satisfactory agreement, money or direct non-callable obligations of the United States of America for the payment of which the full faith and credit of the United States is pledged ("United States Government Obligations") sufficient ------------------------------------ (without reinvestment) to pay all remaining Indebtedness on the Securities to their Maturity Date, (ii) delivering to the Trustee, as trust funds solely for Trustee either an Opinion of Counsel or a ruling directed to the benefit of Trustee from the Internal Revenue Service to the effect that the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, and interest on such Securities to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted recognize income, gain or loss for federal income tax purposes solely as a result of such depositdeposit and termination of obligations, defeasance and discharge(iii) delivering to the Trustee an Opinion of Counsel to the effect that the Issuers' exercise of their option under this paragraph will not result in any of the Issuers, the Trustee or the trust created by the Issuers' deposit of funds pursuant to this provision becoming or being deemed to be an "investment company" under the Investment Company Act of 1940, as amended, and (viiv) the Issuer has delivered delivering to the Trustee an Officers' Certificate and an Opinion of Counsel, in Counsel each case stating that compliance with all conditions precedent provided for herein relating herein. In addition, the Issuers may, provided that no Default or Event of Default has occurred and is continuing or would arise therefrom (or, with respect to a Default or Event of Default specified in Section 6.01(8) or (9), any time on or prior to the satisfaction 91st calendar day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 91st day)) terminate all of their and discharge the Subsidiary Guarantors' substantive obligations in respect of the Securities (including their obligations to pay the principal of and interest on the Securities and the Subsidiary Guarantors' guarantee thereof) by (i) depositing with the Trustee, under the terms of an irrevocable trust agreement, money or United States Government Obligations sufficient (without reinvestment) to pay all remaining indebtedness on the Securities to their Maturity Date, (ii) delivering to the Trustee either a ruling directed to the Trustee from the Internal Revenue Service to the effect that the Holders of the Securities will not recognize income, gain or loss for federal income tax purposes solely as a result of such deposit and termination of obligations or an Opinion of Counsel based upon such a ruling addressed to the Trustee or a change in the applicable Federal tax law since the date of this Indenture have been complied with. With respect to such effect, (iii) delivering to the foregoing clause (a)Trustee an Opinion of Counsel to the effect that the Issuers' exercise of their option under this paragraph will not result in any of the Issuers, the Issuer's obligations Trustee or the trust created by the Issuers' deposit of funds pursuant to this provision becoming or being deemed to be an "investment company" under Section 6.07 shall survive. With respect the Investment Company Act of 1940, as amended, and (iv) delivering to the Trustee an Officers' Certificate and an Opinion of Counsel each stating compliance with all conditions precedent provided for herein. Notwithstanding the foregoing clause (b)paragraph, the Issuer's Issuers' obligations in Sections 3.032.03, 3.042.05, 3.052.06, 3.062.07, 3.074.01 (but not with respect to termination of substantive obligations pursuant to the third sentence of the foregoing paragraph), 10.014.02, 10.097.07, 6.077.08, 6.10, 6.11, 12.04, 12.05 9.03 and 12.06 9.04 shall survive until the Securities have matured or have been redeemedare no longer outstanding. Thereafter, only Thereafter the Issuer's Issuers' obligations in Sections 6.077.07, 12.05 9.03 and 12.06 9.04 shall survive. After any such delivery or irrevocable depositdeposit and delivery of an Officers' Certificate and Opinion of Counsel, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's Issuers' and the Subsidiary Guarantors' obligations under the Securities and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, Indenture except for those surviving obligations specified above.
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Termination of Issuer’s Obligations. Except as otherwise provided in this Section 12.01, each of If the Issuer and the Guarantor may terminate its obligations under the Securities and this Indenture if:
(a) all Securities previously authenticated and delivered (other than destroyed, lost or stolen Securities that have been replaced or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Issuer, as provided in Section 12.05) have been delivered to the Trustee for cancelation and the Issuer has paid all sums payable by it hereunder; or
(i) all such Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer deposits irrevocably deposits in trust with the Trustee during such one-year period, under Fiscal Agent money and/or Eligible Instruments the terms payments of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, principal and interest on which when due (and without reinvestment and providing no tax liability will be imposed upon the Fiscal Agent or the Holders) will provide money in such Securities to maturity or redemptionamounts as will (together with any money irrevocably deposited in trust with the Fiscal Agent, as the case may be, and without investment) be sufficient to pay all other sums payable by it hereunderprincipal and interest when due on the Securities or analogous payments thereon on the scheduled due dates therefor at the maturity thereof, the Issuer’s obligations under Section 7(d) shall terminate with respect to the Securities for which such deposit was made; provided, however, that (iiii) no Default or Event of Default with respect to the Securities of such series under Section 6(a)(4) or 6(a)(5) or event that with notice or lapse of time or both would constitute such an Event of Default shall have occurred and be continuing on the such date of such deposit, and (ivii) such termination shall not relieve the Issuer of its obligations under the Securities and this Agreement to pay when due the principal of and interest on such Securities if such amounts are not paid (or payment is not provided for) when due from the money and Eligible Instruments (and the proceeds thereof) so deposited. It shall be a condition to the deposit of cash and/or Eligible Instruments and the termination of the Issuer’s obligations with respect to the Securities under Section 7(d) pursuant to the provisions of this Section that the Issuer deliver to the Fiscal Agent (i) an opinion of nationally recognized independent tax counsel to the effect that: (a) Holders of will not result in a breach recognize income, gain or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Guarantor or the Issuer is a party or by which it is bound, (v) if at such time the Securities are listed on a national securities exchange, the Securities will not be delisted loss for Federal income tax purposes as a result of such deposit, defeasance deposit and discharge, termination and (vib) such Holders (and future Holders) will be subject to tax in the Issuer same amount, manner and timing as if such deposit and termination has delivered not occurred and (ii) an Officers’ Certificate to the Trustee an Officers' Certificate effect that under the laws in effect on the date such money and/or Eligible Instruments are deposited with the Fiscal Agent, the amount thereof will be sufficient, after payment of all Federal, state and an Opinion of Counsel, local taxes in each case stating that all conditions precedent provided for herein relating respect thereof payable to the satisfaction Fiscal Agent, to pay principal and discharge of this Indenture have been complied withinterest when due on the Securities. With respect to the foregoing clause (a)After a deposit as provided herein, the Issuer's obligations under Section 6.07 shall survive. With respect to the foregoing clause (b)Fiscal Agent shall, the Issuer's obligations in Sections 3.03upon Issuer Request, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities have matured or have been redeemed. Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such irrevocable deposit, the Trustee upon written request shall acknowledge in writing the discharge of the Issuer's ’s obligations under with respect to the Securities and under Section 7(d) pursuant to the provisions of this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified aboveSection.
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