Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option only if: (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, 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 and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any) and interest on the outstanding Notes on the Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three; (b) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company 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 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such 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 defeasance had not occurred; (c) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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; (d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and (e) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes as contemplated by this Article Eight have been complied with.
Appears in 6 contracts
Samples: Indenture (Amc Entertainment Holdings, Inc.), Indenture (Amc Entertainment Holdings, Inc.), Indenture (Amc Entertainment Holdings, Inc.)
Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option only iffollowing shall be the conditions to application of Section 1201 to the Outstanding Senior Notes:
(a) The With respect to the defeasance of the Senior Notes, the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 608 who shall agree to comply with the provisions of this Article Eight Twelve applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Senior Notes, (A) cash in U.S. Dollars, (B) U.S. Government Obligations which through the Notesscheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, cash in U.S. dollars, non-callable Government Securities, Dollars or (C) a combination thereof, in each such case in such amounts as will be sufficient, in the opinion of a United States nationally recognized firm of independent public accountantsaccountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge the principal of (of, and premium, if any) , and interest on Interest on, the outstanding Outstanding Senior Notes on the Stated Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of interestprincipal or on the day on which such payments of premium or Interest are due and payable in accordance with the terms of this Indenture and of such Senior Notes; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Securities Obligations to said payments with respect to the Senior Notes. Before such a depositFor this purpose, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all “U.S. Government Obligations” means securities that are (x) direct obligations of the outstanding Notes at United States of America for the timely payment of which its full faith and credit is pledged or (y) obligations of a future date in accordance with Article Three;
(b) in the case Person controlled or supervised by and acting as an agency or instrumentality of the legal defeasance optionUnited States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company 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 U.S. Federal income tax lawwhich, in either case case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the effect that, and based thereon holder of such Opinion of Counsel shall confirm that, depository receipt from any amount received by the beneficial owners custodian in respect of the outstanding Notes will not recognize income, gain U.S. Government Obligation or loss for U.S. Federal income tax purposes as a result the specific payment of such defeasance and will be subject to U.S. Federal income tax principal of or interest on the same amounts, in the same manner and at the same times as would have been the case if U.S. Government Obligation evidenced by such defeasance had not occurreddepository receipt;
(c) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(e) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes as contemplated by this Article Eight have been complied with.
Appears in 5 contracts
Samples: Indenture (Sea Containers LTD /Ny/), Indenture (Sea Containers LTD /Ny/), Indenture (Sea Containers LTD /Ny/)
Conditions to Defeasance. (a) The Company Issuers may exercise its their legal defeasance option or its their covenant defeasance option only if:
(ai) The Company shall the Issuers irrevocably have deposited or caused to be deposited deposit in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollarsDollars, non-callable U.S. Government SecuritiesObligations or a combination thereof sufficient, or a combination thereof, in such amounts as will be thereof sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of and premium (and premium, if any) and interest on the outstanding Notes when due at maturity or redemption, as the case may be;
(ii) the Issuers deliver to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the Maturity Date (or redemption datedeposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, if applicable) of such principal (and premium, if any, and interest when due on all the Notes to maturity or redemption, as the case may be;
(iii) no Default specified in Section 6.01(f) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments (g) with respect to the Notes. Before Issuers shall have occurred or is continuing on the date of such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(biv) the deposit does not constitute a default under any other material agreement or instrument binding on the Issuers and is not prohibited by Article X;
(v) in the case of the legal defeasance option, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred (and, in the case of legal defeasance only, such Opinion of Counsel must be based on a ruling of the Internal Revenue Service or change in applicable U.S. federal income tax law). Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuers;
(vi) such exercise does not impair the right of any holder to receive payment of principal of, premium, if any, and interest on such holder’s Notes on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such holder’s Notes;
(vii) in the case of the covenant defeasance option, the Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(c) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company delivers Issuers deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.
(b) Before or after a deposit, the Issuers may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 4 contracts
Samples: Indenture (EP Energy Corp), Indenture (EP Energy Corp), Indenture (EP Energy Corp)
Conditions to Defeasance. (a) The Company Issuer may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The Company shall the Issuer irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Securities, 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 and discharge and which shall be applied by the Trustee (or other qualifying trustee) thereof sufficient to pay the principal of and premium (and premium, if any) and interest on the outstanding Notes when due at maturity or redemption, as the case may be;
(ii) the Issuer delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the Maturity Date (or redemption datedeposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, if applicable) of such principal (and premium, if any, and interest when due on all the Notes to maturity or redemption, as the case may be;
(iii) no Default specified in Section 6.01(f) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments (g) with respect to the Notes. Before Issuer shall have occurred or is continuing on the date of such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(biv) the deposit does not constitute a default under any other material agreement or instrument binding on the Issuer;
(v) in the case of the legal defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the beneficial owners holders of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the date of the redemption. Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer;
(vi) such exercise does not impair the right of any holder to receive payment of principal of, premium, if any, and interest on such holder’s Notes on or after the due dates thereof or to institute suit for the enforcement of any payment on or with respect to such holder’s Notes;
(vii) in the case of the covenant defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(c) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company Issuer delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.
(b) Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 3 contracts
Samples: Indenture (Talos Energy Inc.), Indenture (Talos Energy Inc.), Indenture (Talos Energy Inc.)
Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option only iffollowing shall be the conditions to application of Section 1302 to the Outstanding Securities of such series:
(a) The the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 609 who shall agree to comply with the provisions of this Article Eight Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders holders of the Notes, cash in U.S. dollars, non-callable Government such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm acceptable to the Company expressed in a written certification thereof delivered to the Trustee, to pay and discharge discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and each installment of principal of (and premium, if any) and interest on the outstanding Notes Outstanding Securities of such series on any Redemption Date, if the Company has irrevocably elected to cause the Outstanding Securities of such series subject to redemption to be redeemed on a specific Redemption Date by giving notice to the Trustee of such election at the time it exercises its option pursuant to Section 1302, or on the Stated Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money principal or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(b) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or interest and (ii) 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such 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 defeasance had not occurred;
(c) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(e) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes as contemplated by this Article Eight have been complied with.any
Appears in 3 contracts
Samples: Indenture (Teco Energy Inc), Indenture (Tampa Electric Co), Indenture (Teco Energy Inc)
Conditions to Defeasance. The Company may In order to exercise either its legal defeasance option Legal Defeasance Option and give effect thereto (“Legal Defeasance”) or its covenant defeasance option only if:
Covenant Defeasance Option and give effect thereto (a“Covenant Defeasance”), (i) The the Company shall irrevocably have deposited or caused to be deposited deposit with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) Trustee, as trust funds in trust trust, for the benefit of the Holders of the NotesHolders, cash in Dollars, U.S. dollars, non-callable Government SecuritiesObligations, or a combination thereof, maturing as to principal and interest in such amounts as will be sufficient, without consideration of any reinvestment of such interest, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and interest on the outstanding Notes on the Stated Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of principal or interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(bii) in the case of the legal defeasance optionLegal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating confirming that (iA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, ruling or (iiB) since the date of this Indenture Indenture, there has been a change in the applicable U.S. Federal 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such defeasance Legal Defeasance and will be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance Legal Defeasance had not occurred;
; (ciii) in the case of the covenant defeasance optionCovenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect confirming that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance Covenant Defeasance and will be subject to U.S. Federal 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 Covenant Defeasance had not occurred;
; (div) No no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(ev) 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 Company is a party or by which it is bound; (vi) the Company delivers shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Notes over the other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; (vii) no event or condition shall exist that would prevent the Company from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit; and (viii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance and discharge of Legal Defeasance or the Notes Covenant Defeasance, as contemplated by this Article Eight the case may be, have been complied with.
Appears in 3 contracts
Samples: Indenture (Plantronics Inc /Ca/), Indenture (E.W. SCRIPPS Co), Indenture (E.W. SCRIPPS Co)
Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option with respect to the Notes only if:
(ai) The the Company shall or the Guarantors irrevocably have deposited deposits or caused causes to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefit of the Holders of Holders:
(a) money in dollars or in such foreign currency in which the Notes, cash notes are payable in U.S. dollars, at stated maturity;
(b) non-callable U.S. Government Securities, or Obligations; or
(c) a combination thereofof money and non-callable U.S. Government Obligations, in such amounts as will be sufficienteach case sufficient without reinvestment, in the written opinion of a nationally recognized firm of independent public accountants, accountants to pay and discharge discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and premium, if any) and interest on the outstanding Notes on the Maturity Date (or redemption date, if applicable) of day on which such principal (payments are due and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, payable in accordance with Section 3.01 hereof, a notice of its election to redeem all the terms of the outstanding Notes at a future date in accordance with Article Three;Indenture and of the Notes.
(bii) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (iA) the Company has and the Guarantors have received from, or there has been published by, the Internal Revenue Service a ruling, or (iiB) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes will Noteholders shall not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will shall be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(ciii) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will Noteholders shall not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant deposit and defeasance and will shall be subject to U.S. Federal 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 deposit and defeasance had not occurred;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eiv) no Event of Default or event with which notice of lapse of time or both would become an Event of Default with respect to the Notes has occurred and is continuing at the time of such deposit;
(v) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest for the purposes of the Trust Indenture Act with respect to any of the Company’s or the Guarantors’ securities;
(vi) such legal defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument to which the Company or the Guarantors are a party, or by which the Company or the Guarantors are bound;
(vii) such legal defeasance or covenant defeasance will not cause any securities listed on any registered national stock exchange under the Exchange Act to be delisted;
(viii) such legal defeasance or covenant defeasance will be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company or the Guarantors in connection therewith; and
(ix) the Company delivers has delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each Counsel stating that all conditions precedent with respect to the such legal defeasance and discharge of the Notes as contemplated by this Article Eight or covenant defeasance have been complied with. Before or after a deposit, the Company or any of the Guarantors may make arrangements satisfactory to the Trustee for the redemption of any Notes at a future date in accordance with Article III.
Appears in 2 contracts
Samples: Indenture (Acuity Brands Lighting, Inc.), Indenture (Acuity Brands Inc)
Conditions to Defeasance. The Company may In order to exercise its either legal defeasance option or its covenant defeasance option only ifdefeasance:
(a) The Company shall the Issuers or the Parent Guarantor must irrevocably have deposited deposit or caused cause to be deposited as trust funds in trust with the Trustee (or another trustee satisfying such other party as directed by the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust Trustee), for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofthereof (in the case of the Dollar Notes), and cash in euro, European Government Obligations, or a combination thereof (in the case of the Euro Notes), in such amounts as will be sufficient, in the opinion of a nationally an internationally recognized law firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and accrued and unpaid interest and any Additional Amounts, if any, on the outstanding Notes on the Stated Maturity Date (or on the applicable redemption date, as the case may be, and the Issuers or the Parent Guarantor must (i) specify whether the Notes are being defeased to maturity or to a particular redemption date; and (ii) if applicable) of such principal (and premium, if any) or installment of interest; provided that have delivered to the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a an irrevocable notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threeof such principal, premium, if any, or interest;
(b) in the case of the legal defeasance optionan election under Section 8.02, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (iA) the Company has received from, or there has been published by, the U.S. Internal Revenue Service has either published a revenue ruling or issued to the Issuers a private letter ruling, or (iiB) since the date of this Indenture Issue Date, there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel opinion shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such legal defeasance and will be subject to U.S. Federal 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 the covenant defeasance optionan election under Section 8.03, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. Federal 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 no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or, insofar as bankruptcy or insolvency events described in Section 6.01(a)(ix) and (x) are concerned, at any time during the period ending on the 123rd day after the date of such deposit;
(e) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in this Indenture with respect to any of the Issuers’ securities;
(f) such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) under, this Indenture or any material agreement or instrument to which the Parent Guarantor or any Restricted Subsidiary is a party or by which the Parent Guarantor or any Restricted Subsidiary is bound;
(g) such legal defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the U.S. Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(h) the Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel in the country of each Issuer’s or the Parent Guarantor’s incorporation to the effect that after the 123rd day following the deposit, the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and an Opinion of Counsel reasonably acceptable to the Trustee that the Trustee shall have a perfected security interest in such trust funds for the ratable benefit of the Holders;
(i) the Issuers or the Parent Guarantor shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuers or the Parent Guarantor with the intent of preferring the Holders over the other creditors of the Issuers or the Parent Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Issuers or the Parent Guarantor or others, or removing assets beyond the reach of the relevant creditors or increasing debts of the Issuers or the Parent Guarantor to the detriment of the relevant creditors;
(j) no event or condition shall exist that would prevent the Issuers from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 123rd day after the date of such deposit; and
(ek) the Company delivers Issuers or the Parent Guarantor shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the legal defeasance and discharge of or the Notes covenant defeasance, as contemplated by this Article Eight the case may be, have been complied with.
(l) If the funds deposited with the Trustee to effect covenant defeasance are insufficient to pay the principal of, premium, if any, and interest on the Notes when due because of any acceleration occurring after an Event of Default, then the Issuers and the Guarantors shall remain liable for such payments.
Appears in 2 contracts
Samples: Senior Indenture (Ardagh Finance Holdings S.A.), Secured Indenture (Ardagh Finance Holdings S.A.)
Conditions to Defeasance. (a) The Company Issuers may exercise its legal defeasance option or its their covenant defeasance option only if:
(ai) The Company shall the Issuers irrevocably have deposited or caused to be deposited deposit in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollarsDollars, non-callable U.S. Government SecuritiesObligations or a combination thereof in an amount sufficient or U.S. Government Obligations, the principal of and the interest on which will be sufficient, or a combination thereof, in such amounts as will be thereof sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of of, and premium (and premium, if any) and interest on the outstanding Notes applicable Securities when due at maturity or redemption, as the case may be;
(ii) the Issuers deliver to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the Maturity Date (or redemption datedeposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, if applicable) of such principal (and premium, if any, and interest when due on all the Securities to maturity or redemption, as the case may be;
(iii) 91 days pass after the deposit is made and during the 91-day period no Default specified in Section 6.01(g) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments (h) with respect to the Notes. Before such a deposit, Issuers occurs which is continuing at the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all end of the outstanding Notes at a future date in accordance with Article Threeperiod;
(biv) the deposit does not constitute a default under any other agreement binding on the Issuers;
(v) the Issuers deliver to the Trustee an opinion of counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Company Issuers shall have delivered to the Trustee an Opinion opinion of Counsel counsel stating that (i1) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) 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 opinion of Counsel counsel shall confirm that, the beneficial owners of the outstanding Notes Holders will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(cvii) in the case of the covenant defeasance option, the Company Issuers shall have delivered to the Trustee an Opinion opinion of Counsel counsel to the effect that the beneficial owners of the outstanding Notes Holders will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant deposit and defeasance and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant deposit and defeasance had not occurred;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company delivers Issuers deliver to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes Securities to be so defeased and discharged as contemplated by this Article Eight 8 have been complied with. Notwithstanding the foregoing, the opinion of counsel required by the clause (vi) above need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuers.
(b) Before or after a deposit, the Issuers may make arrangements satisfactory to the Trustee for the redemption of such Securities at a future date in accordance with Article 3.
Appears in 2 contracts
Samples: Indenture (Gates Global Inc.), Indenture (Gates Engineering & Services FZCO)
Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight VIII applicable to it) as trust funds in trust for the benefit of the Holders of the NotesSecurities, cash in U.S. dollarsDollars, non-callable Government Securities, Securities or a combination thereof, in such amounts as will shall be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any) and interest (including any Special Interest) on the outstanding Notes Securities on the Stated Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before Securities; before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof3.01, a notice of its election to redeem all of the outstanding Notes Securities at a future date in accordance with Article ThreeIII, which notice shall be irrevocable;
(b) No Default or Event of Default shall have occurred and be continuing on the date of such deposit or, insofar as Section 6.01(h), (i) or (j) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(c) the deposit does not constitute a default hereunder or under any other material agreement binding on the Company;
(d) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940;
(e) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company 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 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 outstanding Notes Holders 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 defeasance had not occurred;
(cf) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes Holders 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eg) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes Securities as contemplated by this Article Eight VIII have been complied with.
Appears in 2 contracts
Samples: Indenture (National CineMedia, LLC), Indenture (National CineMedia, Inc.)
Conditions to Defeasance. The Company may In order to exercise its legal defeasance option either Legal Defeasance or its covenant defeasance option only ifCovenant Defeasance:
(a) The Company shall the Issuer or the Guarantor must irrevocably have deposited or caused to be deposited deposit with the Trustee (or another trustee satisfying such entity designated by the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds Trustee), in trust trust, for the benefit of the Holders holders of the Notes, cash in U.S. dollarseuros, non-callable European Government SecuritiesObligations, or a combination thereofof cash in euros and non- callable European Government Obligations, in each case, in such amounts as will shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (of, and premiuminterest, premium and Additional Amounts, if any) and interest , on the outstanding Notes on the Stated Maturity Date (or on the applicable redemption date, if applicable) of such principal (as the case may be, and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money Issuer or the proceeds of such Government Securities Guarantor must specify whether the Notes are being defeased to said payments with respect maturity or to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threeparticular redemption date;
(b) in the case of the legal defeasance optionLegal Defeasance, the Company shall Issuer or the Guarantor must have delivered to the Trustee an Opinion opinion of Counsel stating counsel of recognized standing with respect to U.S. federal income tax matters (reasonably acceptable to the Trustee) confirming that (i) the Company Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, ruling or (ii) since the date of this Indenture Issue Date, there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, that (and based thereon such Opinion of Counsel opinion shall confirm that, ) the beneficial owners of the outstanding Notes will shall not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such defeasance Legal Defeasance and will shall be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance Legal Defeasance had not occurred;
(c) in the case of the covenant defeasance optionCovenant Defeasance, the Company shall Issuer or the Guarantor must have delivered to the Trustee an Opinion opinion of Counsel counsel of recognized standing with respect to U.S. federal income tax matters (reasonably acceptable to the effect Trustee) confirming that the beneficial owners of the outstanding Notes will shall not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance Covenant Defeasance and will shall be subject to U.S. Federal 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 Covenant Defeasance had not occurred;
(d) No no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have has occurred and be is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit; and);
(e) such Legal Defeasance or Covenant Defeasance, including the Company delivers deposit described in clause (a), above, shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Guarantor or any of its Subsidiaries is a party or by which the Guarantor or any of its Subsidiaries is bound;
(f) the Issuer or the Guarantor must deliver to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Issuer or the Guarantor with the intent of preferring the holders of Notes over the other creditors of the Issuer or the Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or the Guarantor or others; and
(g) the Issuer or the Guarantor must deliver to the Trustee an Officers' Certificate and an Opinion opinion of Counselcounsel (and the Trustee shall rely on both absolutely), each stating that all conditions precedent relating to the defeasance and discharge of Legal Defeasance or the Notes as contemplated by this Article Eight Covenant Defeasance have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of, premium, if any, and interest on the Notes when due because of any acceleration occurring after an Event of Default, then the Issuer and the Guarantor shall remain liable for such payments.
Appears in 2 contracts
Conditions to Defeasance. (a) The Company Issuer may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The Company shall the Issuer irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government SecuritiesObligations that will mature into cash at a time or times, and in amounts, 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 and discharge and which shall be applied by the Trustee (or other qualifying trustee) that is sufficient to pay the principal of and premium (and premium, if any) and interest on the outstanding Notes when due at maturity or redemption, as the case may be;
(ii) the Issuer delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the Maturity Date (or redemption datedeposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, if applicable) of such principal (and premium, if any, and interest when due on all the Notes to maturity or redemption, as the case may be;
(iii) no Default specified in Section 6.01(f) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments (g) with respect to the Notes. Before Issuer shall have occurred or is continuing on the date of such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(biv) the deposit does not constitute a default under any other material agreement or instrument binding on the Issuer;
(v) in the case of the legal defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the date of the redemption. Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer;
(vi) such exercise does not impair the right of any holder to receive payment of principal of, premium, if any, and interest on such holder’s Notes on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such holder’s Notes;
(vii) in the case of the covenant defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(c) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company Issuer delivers to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.
(b) Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 2 contracts
Samples: Indenture (Chart Industries Inc), Indenture (Chart Industries Inc)
Conditions to Defeasance. (a) The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The the Company shall irrevocably have deposited or caused to be deposited deposits in trust with the U.S. Trustee (money in an amount sufficient or another trustee satisfying U.S. Government Obligations, the requirements principal of Section 7.10 who and interest on which shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securitiesbe sufficient, or a combination thereofthereof sufficient to pay the principal of, in and premium (if any), and interest, on the Notes when due at maturity or redemption, as the case may be, including interest thereon to maturity or such amounts as will be sufficient, in redemption date;
(ii) the opinion of Company delivers to the U.S. Trustee a certificate from a nationally recognized firm of independent public accountants, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm, with customary assumptions expressing their opinion to the effect that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any) and interest when due on all the outstanding Notes on to maturity or redemption, as the Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company case may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threebe;
(biii) the Company delivers to the Trustees an Opinion of Counsel in Canada to the effect that: the beneficial owners of the notes will not recognize income, gain or loss for Canadian federal income tax purposes as a result of the defeasance or covenant defeasance; and the defeasance or covenant defeasance will not otherwise alter those beneficial owners’ Canadian federal income tax treatment of principal and interest payments on the notes;
(iv) such defeasance or covenant defeasance does not result in a breach or violation of, or constitute a default under, any indenture or other agreement or instrument for borrowed money to which the Company is a party or by which the Company is bound (other than a default or event of default resulting from the borrowing of funds to be applied to such deposit and any simultaneous deposit relating to other indebtedness and, in each case, the granting of Liens in connection therewith);
(v) no Default or Event of Default under this Indenture has occurred and is continuing after giving effect to such defeasance or covenant defeasance (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and any simultaneous deposit relating to other indebtedness and, in each case, the granting of Liens in connection therewith);
(vi) the Company is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada) and is not insolvent, unable to pay its debts in full or on the eve of insolvency under applicable provincial law on the date of such deposit;
(vii) in the case of the legal defeasance option, the Company shall have delivered to the Trustee Trustees an Opinion of Counsel stating to the effect that (iA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (iiB) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal United States federal income tax purposes as a result of such defeasance and that such defeasance will be subject to U.S. Federal not otherwise alter those beneficial owners’ United States federal income tax treatment of principal and interest payments on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurredNotes;
(cviii) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee Trustees an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal United States federal income tax purposes as a result of such covenant defeasance and that such defeasance will be subject to U.S. Federal not otherwise alter those beneficial owners’ United States federal income tax treatment of principal and interest payments 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 (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such depositNotes; and
(eix) the Company delivers to the Trustee Trustees an Officers’ Certificate and an Opinion of Counsel, each stating to the effect that all conditions precedent to the such defeasance and discharge of the Notes or covenant defeasance as contemplated by this Article Eight 8 have been complied with.
(b) In connection with any defeasance or covenant defeasance involving a redemption that requires the payment of the Applicable Premium, the amount deposited with the U.S. Trustee as provided in Section 8.2(a)(i) in respect of such Applicable Premium shall be sufficient if equal to the Applicable Premium calculated as of the date of deposit, with any deficit as of the date of redemption (any such amount, the “Applicable Premium Deficit”) only required to be deposited with the U.S. Trustee on or prior to the date of redemption. Any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption.
Appears in 2 contracts
Samples: Indenture (Open Text Corp), Indenture (Open Text Corp)
Conditions to Defeasance. (1) The Company Issuer may exercise its legal defeasance option or its covenant defeasance option only if:
(a) The Company shall the Issuer irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Securities, Obligations or a combination thereof, thereof in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) an amount that is sufficient to pay the principal of and premium (and premium, if any) and interest on the outstanding Notes when due at maturity or redemption, as the case may be;
(b) the Issuer delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the Maturity Date (or redemption datedeposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, if applicable) of such principal (and premium, if any, and interest when due on all the Notes to maturity or redemption, as the case may be;
(c) no Default specified in Section 6.01(6) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments (7) with respect to the Notes. Before Issuer shall have occurred or is continuing on the date of such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(bd) the deposit does not constitute a default under any other material agreement or instrument binding on the Issuer;
(e) in the case of the legal defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the date of the redemption. Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer;
(f) such exercise does not impair the contractual right of any holder to receive payment of principal of, premium, if any, and interest on such holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such holder’s Notes;
(g) in the case of the covenant defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(c) in ; provided that upon any redemption that requires the case payment of the covenant defeasance optionApplicable Premium, the Company amount deposited shall have be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the date of the redemption. Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee an Opinion of Counsel for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the effect that Trustee for the beneficial owners giving of notice of redemption by the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. Federal income tax on the same amounts, Trustee in the same manner name, and at the same times as would have been expense, of the case if such covenant defeasance had not occurred;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such depositIssuer; and
(eh) the Company Issuer delivers to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.
(2) Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 1 contract
Samples: Indenture (Advantage Solutions Inc.)
Conditions to Defeasance. (a) The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The the Company shall irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Securities, 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 and discharge and which shall be applied by the Trustee (or other qualifying trustee) thereof sufficient to pay the principal of and premium (and premium, if any) and interest on the outstanding Notes when due at maturity or redemption, as the case may be;
(ii) with respect to U.S. Government Obligations or a combination of money and U.S. Government Obligations, the Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm, expressing their opinion that the payments of principal and interest when due and without reinvestment on the Maturity Date (or redemption datedeposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, if applicable) of such principal (and premium, if any) , and interest when due on all the Notes to maturity or installment of interestredemption, as the case may be; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee shall have been irrevocably instructed equal to apply such money the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to 10:00 a.m., New York City time, on the proceeds date of such Government Securities to said payments the redemption;
(iii) no Default specified in Section 6.01(f) or (g) with respect to the Notes. Before Company shall have occurred or is continuing on the date of such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(biv) the deposit does not constitute a default under any other material agreement or instrument binding on the Company;
(v) the Company shall have delivered to the Trustee in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred. Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year, or if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;
(cvi) such exercise does not impair the right of any holder to receive payment of principal of, premium, if any, and interest on such holder’s Notes on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such holder’s Notes;
(vii) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such covenant deposit and defeasance had not occurred;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.
(b) Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 1 contract
Samples: Indenture (XPO Logistics, Inc.)
Conditions to Defeasance. The Company may In order to exercise either its legal defeasance option Legal Defeasance Option and give effect thereto ("Legal Defeasance") or its covenant defeasance option only if:
Covenant Defeasance Option and give effect thereto (a"Covenant Defeasance"), (i) The the Company shall irrevocably have deposited or caused to be deposited deposit with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) Trustee, as trust funds in trust trust, for the benefit of the Holders of the NotesHolders, cash in U.S. United States dollars, non-callable U.S. Government SecuritiesObligations, or a combination thereof, maturing as to principal and interest in such amounts as will be sufficient, without consideration of any reinvestment of such interest, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and interest on the outstanding Notes on the Maturity Date (or redemption date, if applicable) stated maturity of such principal (and premium, if any) or installment of principal or interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(bii) in the case of the legal defeasance optionLegal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating confirming that (iA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, ruling or (iiB) since the date of this Indenture Indenture, there has been a change in the applicable U.S. Federal 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 outstanding Notes Holders will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such defeasance Legal Defeasance and will be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance Legal Defeasance had not occurred;
; (ciii) in the case of the covenant defeasance optionCovenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect confirming that the beneficial owners of the outstanding Notes Holders will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance Covenant Defeasance and will be subject to U.S. Federal 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 Covenant Defeasance had not occurred;
; (div) No no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit or insofar as Section 6.01(a)(ix) and (x) are concerned, at any time during the period ending on the 91st day after the date of deposit; and
(ev) 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 Company is a party or by which it is bound; (vi) the Company delivers shall have delivered to the Trustee an Opinion of Counsel to the effect that (A) the trust funds will not be subject to any rights of holders of Senior Debt or Guarantor Senior Debt of any Subsidiary Guarantor, including, without limitation, those arising under this Indenture, after the 91st day following the deposit and (B) 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; (vii) the Company shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Notes over the other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; (viii) no event or condition shall exist that would prevent the Company from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 91st day after the date of such deposit; (ix) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance and discharge of Legal Defeasance or the Notes Covenant Defeasance, as contemplated by this Article Eight the case may be, have been complied with; and (x) such deposit shall not violate the provisions described in Article X or Article XI.
Appears in 1 contract
Conditions to Defeasance. The Company may In order to exercise its either legal defeasance option or its covenant defeasance option only ifdefeasance:
(a) The Company shall the Issuers or the Parent Guarantor must irrevocably have deposited deposit or caused cause to be deposited as trust funds in trust with the Trustee (or another trustee satisfying such other party as directed by the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust Trustee), for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofthereof (in the case of the Dollar Notes), and cash in euro, European Government Obligations, or a combination thereof (in the case of the Euro Notes), in such amounts as will be sufficient, in the opinion of a nationally an internationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and accrued and unpaid interest and any Additional Amounts, if any, on the outstanding Notes on the Stated Maturity Date (or on the applicable redemption date, as the case may be, and the Issuers or the Parent Guarantor must (i) specify whether the Notes are being defeased to maturity or to a particular redemption date; and (ii) if applicable) of such principal (and premium, if any) or installment of interest; provided that have delivered to the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a an irrevocable notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threeof such principal, premium, if any, or interest;
(b) in the case of the legal defeasance optionan election under Section 8.02, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (iA) the Company has received from, or there has been published by, the U.S. Internal Revenue Service has either published a revenue ruling or issued to the Issuers a private letter ruling, or (iiB) since the date of this Indenture Issue Date, there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel opinion shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such legal defeasance and will be subject to U.S. Federal 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 the covenant defeasance optionan election under Section 8.03, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. Federal 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 no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or, insofar as bankruptcy or insolvency events described in Section 6.01(a)(x) and (xi) are concerned, at any time during the period ending on the 123rd day after the date of such deposit;
(e) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in this Indenture with respect to any of the Issuers’ securities;
(f) such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) under, this Indenture or any material agreement or instrument to which the Parent Guarantor or any Restricted Subsidiary is a party or by which the Parent Guarantor or any Restricted Subsidiary is bound;
(g) such legal defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the U.S. Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(h) the Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel in the country of each Issuer’s or the Parent Guarantor’s incorporation to the effect that after the 123rd day following the deposit, the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and an Opinion of Counsel reasonably acceptable to the Trustee that the Trustee shall have a perfected security interest in such trust funds for the ratable benefit of the Holders;
(i) the Issuers or the Parent Guarantor shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuers or the Parent Guarantor with the intent of preferring the Holders over the other creditors of the Issuers or the Parent Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Issuers or the Parent Guarantor or others, or removing assets beyond the reach of the relevant creditors or increasing debts of the Issuers or the Parent Guarantor to the detriment of the relevant creditors;
(j) no event or condition shall exist that would prevent the Issuers from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 123rd day after the date of such deposit; and
(ek) the Company delivers Issuers or the Parent Guarantor shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the legal defeasance and discharge of or the Notes covenant defeasance, as contemplated by this Article Eight the case may be, have been complied with.
(l) If the funds deposited with the Trustee to effect covenant defeasance are insufficient to pay the principal of, premium, if any, and interest on the Notes when due because of any acceleration occurring after an Event of Default, then the Issuers and the Guarantors shall remain liable for such payments.
Appears in 1 contract
Conditions to Defeasance. The Company may In order to exercise its legal defeasance option either Legal Defeasance or its covenant defeasance option only ifCovenant Defeasance:
(a) The Company shall the Issuer must irrevocably have deposited deposit or caused cause to be deposited in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust Trustee, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government SecuritiesObligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally an internationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and interest interest, on the outstanding Notes on the Stated Maturity Date (or on the applicable redemption date, as the case may be, and the Issuer must (i) specify whether the Notes are being defeased to Maturity or to a particular redemption date; and (ii) if applicable) of such principal (and premium, if any) or installment of interest; provided that have delivered to the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election an Officer’s Certificate to redeem all of the outstanding Notes at a future date in accordance with Article Threeof such principal, premium, if any, or interest;
(b) in the case of the legal defeasance optionan election under Section 8.02, the Company shall Issuer must have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (ix) the Company Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (iiy) since the date of this Indenture Indenture, there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel opinion shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such defeasance Legal Defeasance and will be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance Legal Defeasance had not occurred;
(c) in the case of the covenant defeasance optionan election under Section 8.03, the Company shall Issuer must have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance Covenant Defeasance and will be subject to U.S. Federal 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 Covenant Defeasance had not occurred;
(d) No no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit; and);
(e) [reserved];
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under (other than a Default or Event of Default resulting from the Company delivers borrowing of funds to be applied to such deposit), this Indenture or any material agreement or instrument to which the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to Issuer or any Restricted Subsidiary is a party or by which the defeasance and discharge of the Notes as contemplated by this Article Eight have been complied with.Issuer or any Restricted Subsidiary is bound;
Appears in 1 contract
Samples: Indenture (Digicel Pacific LTD)
Conditions to Defeasance. The Company Note Issuer may exercise its legal defeasance option the Legal Defeasance Option or its covenant defeasance option the Covenant Defeasance Option with respect to any Series of Notes only if:
(a) The Company shall the Note Issuer irrevocably have deposited deposits or caused causes to be deposited in trust with the Indenture Trustee (cash or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust U.S. Government Obligations for the benefit payment of principal of and premium, if any, and interest on such Notes to the Holders of Scheduled Payment Dates or Optional Redemption Date therefor, as applicable;
(b) the Notes, cash in U.S. dollars, non-callable Government Securities, or Note Issuer delivers to the Indenture Trustee a combination thereof, in such amounts as will be sufficient, in the opinion of certificate from a nationally recognized firm of independent public accountantsIndependent accountants expressing its opinion that the payments of principal and interest when due and without reinvestment of the deposited U.S. Government Obligations plus any deposited cash without investment will provide cash at such times and in such amounts (but, in the case of the Legal Defeasance Option only, not more than such amounts) as will be sufficient to pay and discharge and which shall be applied by in respect of the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any) and interest on the outstanding Notes on the Maturity Date (or redemption date, if applicable) of such Series (i) subject to clause (ii), principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereofthe Expected Amortization Schedule therefor, a notice of its election (ii) if such Series is to redeem all of be redeemed, the outstanding Notes at a future date in accordance with Article ThreeOptional Redemption Price therefor on the Optional Redemption Date and (iii) interest when due;
(bc) in the case of the legal defeasance optionLegal Defeasance Option, 91 days pass after the deposit is made and during the 91-day period no Default specified in Section 5.01(vi) or (vii) occurs which is continuing at the end of the period;
(d) no Default has occurred and is continuing on the day of such deposit and after giving effect thereto;
(e) in the case of an exercise of the Legal Defeasance Option, the Company Note Issuer shall have delivered to the Indenture Trustee an Opinion of Counsel stating that (i) the Company Note Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture Indenture, there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel opinion shall confirm that, the beneficial owners Holders of the outstanding Notes of such Series will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such legal defeasance and will be subject to U.S. Federal 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;
(cf) in the case of an exercise of the covenant defeasance optionCovenant Defeasance Option, the Company Note Issuer shall have delivered to the Indenture Trustee an Opinion of Counsel to the effect that the beneficial owners Holders of the outstanding Notes of such Series will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. Federal 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 (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eg) the Company Note Issuer delivers to the Indenture Trustee an Officers’ Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance satisfaction and discharge of the Notes as of such Series to the extent contemplated by this Article Eight IV have been complied with.; and
(h) the Rating Agency Condition shall have been satisfied with respect to the exercise of any Legal Defeasance Option or Covenant Defeasance Option. Before or after a deposit pursuant to this Section 4.02 with respect to any Series of Notes, the Note Issuer may make arrangements satisfactory to the Indenture Trustee for the redemption of such Notes at a future date in accordance with Article X.
Appears in 1 contract
Conditions to Defeasance. (a) The Company Issuer may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The Company the Issuer irrevocably deposits in trust with the Trustee money or U.S. Government Obligations, or a combination thereof sufficient to pay the principal of, premium (if any) and interest (without reinvestment), on the Notes when due at maturity or redemption, as the case may be;
(ii) with respect to U.S. Government Obligations, or a combination of money and U.S. Government Obligations, the Issuer delivers to the Trustee a certificate from a nationally recognized firm of independent accountants, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm, expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations, plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, premium, if any, and interest on the Notes to redemption or maturity, as the case may be; provided that upon any defeasance that requires the payment of the Applicable Premium, the amount deposited shall irrevocably have be sufficient for purposes of this Indenture to the extent that an amount is deposited or caused with the Trustee equal to the Applicable Premium, calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee (on or another trustee satisfying prior to the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit date of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, 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 and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any) and interest on the outstanding Notes on the Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threeredemption;
(biii) the Issuer shall have delivered to the Trustee in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred. Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year, or if redeemable at the option of the Issuer, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer;
(civ) such exercise does not impair the right of any holder to receive payment of principal of, premium, if any, and interest on such holder’s Notes on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such holder’s Notes;
(v) in the case of the covenant defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such covenant deposit and defeasance had not occurred;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(evi) the Company Issuer delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.
(b) Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 1 contract
Samples: Indenture (Forward Air Corp)
Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(a1) The the Company shall irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust Trustee, for the benefit of the Holders of the NotesHolders, cash in U.S. dollarsDollars, non-callable U.S. Government SecuritiesObligations, or a combination thereof, in such amounts as will shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any) and interest on the outstanding Notes Securities on the Maturity Date (or redemption date, if applicable) stated maturity of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money interest or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threeupon redemption;
(b2) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company 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 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 Holders of the outstanding Notes Securities will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such defeasance and will shall 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 defeasance had not occurred;
(c) , which such opinion, in the case of legal defeasance, shall also state that (A) the covenant defeasance optionCompany has received from, or there has been published by, the Company shall have delivered Internal Revenue Service a ruling to such effect or (B) since the Trustee an Opinion of Counsel to Closing Date there has been a change in the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. applicable Federal income tax purposes as a result of laws or regulations to such covenant defeasance and will be subject effect or (C) there exists controlling precedent 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 occurredeffect;
(d3) No no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
(4) such defeasance shall not result in a breach or violation of or constitute a default under any material agreement or instrument to which the Company is a party or by which it is bound; and
(e5) the Company delivers shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the such defeasance and discharge of the Notes as contemplated by this Article Eight have been complied withsatisfied. Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date in accordance with Article 3.
Appears in 1 contract
Conditions to Defeasance. (a) The Company Issuer may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The Company shall the Issuer irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, 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 and discharge and which shall be applied by the Trustee (or other qualifying trustee) Dollars sufficient to pay the principal of and premium (and premium, if any) and interest on the outstanding Notes when due at maturity or redemption, as the case may be; provided that upon any redemption that requires the payment of the Make-Whole Redemption price, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Make-Whole Redemption Price calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the Maturity Date date of the redemption;
(ii) the Issuer delivers to the Trustee a certificate from a nationally recognized firm of independent accountants, investment bank or redemption datefinancial advisory firm expressing their opinion that the payments of principal and interest when due and without reinvestment on any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, if applicable) of such principal (and premium, if any, and interest when due on all the Notes to maturity or redemption, as the case may be;
(iii) no Default specified in Section 10.01(h) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments (i) with respect to the Notes. Before Issuer shall have occurred or is continuing on the date of such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(biv) the deposit does not constitute a default under any other material agreement or instrument binding on the Issuer;
(v) in the case of the legal defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred. Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Maturity Date within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer;
(vi) such exercise does not impair the right of any Holder to receive payment of principal of, premium, if any, and interest on such Holder’s Notes on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such Xxxxxx’s Notes;
(vii) in the case of the covenant defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(c) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company Issuer delivers to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight XII have been complied with.
(b) Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 1 contract
Samples: Indenture (Wolfspeed, Inc.)
Conditions to Defeasance. (a) The Company Issuer may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The Company shall the Issuer irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Securities, 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 and discharge and which shall be applied by the Trustee (or other qualifying trustee) thereof sufficient to pay the principal of and premium (and premium, if any) and interest on the outstanding Notes when due at maturity or redemption, as the case may be;
(ii) with respect to U.S. Government Obligations or a combination of money and U.S. Government Obligations, the Issuer delivers to the Trustee a certificate from a nationally recognized firm of independent accountants, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm, expressing their opinion that the payments of principal and interest when due and without reinvestment on the Maturity Date (or redemption datedeposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, if applicable) of such principal (and premium, if any) , and interest when due on all the Notes to maturity or installment of interestredemption, as the case may be; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee shall have been irrevocably instructed equal to apply such money the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the proceeds date of such Government Securities to said payments the redemption in the manner described in Section 8.01(a)(i);
(iii) no Default specified in Section 6.01(e) or (f) with respect to the Notes. Before Issuer shall have occurred or is continuing on the date of such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(biv) the deposit does not constitute a default under any other material agreement or instrument binding on the Issuer;
(v) the Issuer shall have delivered to the Trustee in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred. Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer;
(cvi) such exercise does not impair the right of any holder to receive payment of principal of, premium, if any, and interest on such holder’s Notes on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such holder’s Notes;
(vii) in the case of the covenant defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes holders will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant deposit and defeasance and will be subject to U.S. Federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such covenant deposit and defeasance had not occurred;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company Issuer delivers to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.
(b) Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 1 contract
Samples: Indenture (Interface Inc)
Conditions to Defeasance. The In order for the Company may to exercise its legal defeasance option or its covenant defeasance option only ifoption:
(ai) The the Company shall must irrevocably have deposited deposit or caused cause to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) Trustee, in trust, specifically pledged as trust funds in trust for security for, and dedicated solely to, the benefit of the Holders holders of the NotesSecurities, cash money in an amount, or U.S. dollars, non-callable Government SecuritiesObligations which through the scheduled payment of principal and interest thereon will provide money in an amount, or a combination thereof, in such amounts as will be sufficientsuf- ficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any, on) and interest on the outstanding Notes on the Maturity Date Securities at maturity (or redemption dateupon redemption, if applicable) of such principal (and premiumprincipal, if any) premium or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(bii) no Default or Event of Default shall have oc- curred and be continuing on the date of such deposit or, insofar as an event of bankruptcy under Section 6.1(vi) or (vii) above is concerned, at any time during the period ending on the 91st day after the date of such deposit;
(iii) such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a de- fault under this Indenture or any material agreement or instrument to which the Company is a party or by which it is bound;
(iv) in the case of the legal defeasance optiondefeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating stat- ing that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of this Indenture hereof, there has been a change in the applicable U.S. Federal applica- ble federal income tax law, in either case to the effect thateffect, and based thereon such Opinion of Counsel opinion shall confirm that, the beneficial owners holders of the outstanding Notes Securities will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such defeasance and will be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had defex- xxxxx xxx not occurred;
(cv) in the case of the covenant defeasance optiondefeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners holders of the outstanding Notes Securities outstand- ing will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance and defex- xxxxx xxx will be subject to U.S. Federal 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;
(dvi) No Default in the case of defeasance or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtednesscovenant defex- xxxxx, and, in each case the granting of Liens in connection therewith) xxe Company shall have occurred and be continuing on delivered to the Trustee an Opinion of Counsel in the United States to the effect that after the 91st day following the deposit or after the date such opinion is delivered, the trust funds will not be subject to the effect of such deposit; andany applicable bankruptcy, insol- vency, reorganization or similar laws affecting creditors' rights generally;
(evii) the Company delivers shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company with the intent of preferring the holders of the Securities over the other creditors of the Company with the intent of hindering, delaying or defraud- ing creditors of the Company; and
(viii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relat- ing to either the defeasance and discharge of or the Notes covenant defeasance, as contemplated by this Article Eight the case may be, have been complied with.
Appears in 1 contract
Samples: Indenture (Atlas Air Inc)
Conditions to Defeasance. (a) The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The the Company shall irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in Dollars, U.S. dollars, non-callable Government Securities, 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 and discharge and which shall be applied by the Trustee (or other qualifying trustee) thereof sufficient to pay the principal of and premium (and premium, if any) and interest on the outstanding Notes when due at maturity or redemption, as the case may be;
(ii) with respect to U.S. Government Obligations or a combination of money and U.S. Government Obligations, the Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm, expressing their opinion that the payments of principal and interest when due and without reinvestment on the Maturity Date (or redemption datedeposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, if applicable) of such principal (and premium, if any) , and interest when due on all the Notes to maturity or installment of interestredemption, as the case may be; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee shall have been irrevocably instructed equal to apply such money the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the proceeds date of such Government Securities to said payments the redemption;
(iii) no Default specified in Section 6.01(f) or (g) with respect to the Notes. Before Company shall have occurred or is continuing on the date of such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(biv) the deposit does not constitute a default under any other material agreement or instrument binding on the Company;
(v) the Company shall have delivered to the Trustee in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture Issue Date there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the beneficial owners holders of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred. Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;
(cvi) such exercise does not impair the right of any holder to receive payment of principal of, premium, if any, and interest on such holder’s Notes on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such holder’s Notes;
(vii) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners holders of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such covenant deposit and defeasance had not occurred;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.
(b) Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 1 contract
Samples: Indenture (MULTI COLOR Corp)
Conditions to Defeasance. (a) The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The the Company shall irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (money in an amount sufficient, or another trustee satisfying U.S. Government Obligations, the requirements principal of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securitiesand interest on which will be sufficient, or a combination thereofthereof sufficient, to pay the principal of, and premium (if any) and interest on, the Securities when due at maturity or redemption, as the case may be, including interest thereon to maturity or such redemption date;
(ii) the Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, sufficient to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and principal, premium, if any) , and interest on the outstanding Notes on the Maturity Date (or redemption date, if applicable) of such principal (and premium, if any, when due on all the Securities to maturity or redemption, as the case may be;
(iii) 123 days pass after the deposit is made and during the 123-day period no Default specified in Section 6.01(d) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments (e) with respect to the Notes. Before such a deposit, Company occurs which is continuing at the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all end of the outstanding Notes at a future date in accordance with Article Threeperiod;
(biv) the deposit does not constitute a default under any other agreement binding on the Company;
(v) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes Holders will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(cvii) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes Holders will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant deposit and defeasance and will be subject to U.S. Federal 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 deposit and defeasance had not occurred;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes Securities as contemplated by this Article Eight 8 have been complied with.
(b) Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date in accordance with Article 3.
Appears in 1 contract
Samples: Indenture (SOUTHERN DEVELOPMENT Co)
Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight VIII applicable to it) as trust funds in trust for the benefit of the Holders of the NotesSecurities, cash in U.S. dollarsDollars, non-callable Government Securities, Securities or a combination thereof, in such amounts as will shall be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any) and interest on the outstanding Notes Securities on the Stated Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before Securities; before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof3.01, a notice of its election to redeem all of the outstanding Notes Securities at a future date in accordance with Article ThreeIII, which notice shall be irrevocable;
(b) No Default or Event of Default shall have occurred and be continuing on the date of such deposit or, insofar as Section 6.01(g), (h) or (i) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(c) the deposit does not constitute a default hereunder or under any other material agreement binding on the Company;
(d) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940;
(e) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company 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 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 outstanding Notes Holders 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 defeasance had not occurred;
(cf) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes Holders 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eg) the Company delivers to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes Securities as contemplated by this Article Eight VIII have been complied with.
Appears in 1 contract
Samples: Indenture (National CineMedia, LLC)
Conditions to Defeasance. (a) The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The the Company irrevocably deposits in trust with the Trustee money or U.S. Government Obligations (in the case of the Dollar Notes), Euro Government Obligations (in the case of the Euro Notes), or a combination thereof sufficient to pay the principal of, premium (if any), interest and Additional Amounts, if any (without reinvestment), on the Notes when due at maturity or redemption, as the case may be;
(ii) with respect to U.S. Government Obligations, Euro Government Obligations, or a combination of money and U.S. Government Obligations, or Euro Government Obligations the Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm, expressing their opinion that the payments of principal, interest and Additional Amounts, if any, when due and without reinvestment on the deposited U.S. Government Obligations or Euro Government Obligations, plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, premium, if any, interest and Additional Amounts, if any, when due on the Notes of such series to maturity or redemption, as the case may be; provided that upon any defeasance that requires the payment of the Applicable Premium, the amount deposited shall irrevocably have be sufficient for purposes of this Indenture to the extent that an amount is deposited or caused with the Trustee equal to the Applicable Premium, calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee (or another trustee satisfying on the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit date of the Holders of the Notes, cash redemption;
(iii) no Default specified in U.S. dollars, non-callable Government Securities, 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 and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any) and interest on the outstanding Notes on the Maturity Date (or redemption date, if applicable) of such principal (and premium, if anySection 6.01(f) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments (g) with respect to the Notes. Before Company shall have occurred or is continuing on the date of such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(biv) the deposit does not constitute a default under any other material agreement or instrument binding on the Company;
(v) the Company shall have delivered to the Trustee in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred. Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year, or if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;
(cvi) such exercise does not impair the right of any holder to receive payment of principal of, premium, if any, interest and Additional Amounts, if any, on such holder’s Notes on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such holder’s Notes;
(vii) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such covenant deposit and defeasance had not occurred;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.
(b) Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 1 contract
Samples: Indenture (XPO Logistics, Inc.)
Conditions to Defeasance. The Company may In order to exercise its either legal defeasance option or its covenant defeasance option only ifdefeasance:
(a) The Company shall the Issuers or the Parent Guarantor must irrevocably have deposited deposit or caused cause to be deposited as trust funds in trust with the Trustee (or another trustee satisfying such other party as directed by the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust Trustee), for the benefit of the Holders of the NotesHolders, cash in U.S. dollarspounds sterling, non-callable U.K. Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally an internationally recognized law firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and accrued and unpaid interest and any Additional Amounts, if any, on the outstanding Notes on the Stated Maturity Date (or on the applicable redemption date, as the case may be, and the Issuers or the Parent Guarantor must (i) specify whether the Notes are being defeased to maturity or to a particular redemption date; and (ii) if applicable) of such principal (and premium, if any) or installment of interest; provided that have delivered to the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a an irrevocable notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threeof such principal, premium, if any, or interest;
(b) in the case of the legal defeasance optionan election under Section 8.02, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (iA) the Company has received from, or there has been published by, the U.S. Internal Revenue Service has either published a revenue ruling or issued to the Issuers a private letter ruling, or (iiB) since the date of this Indenture Issue Date, there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel opinion shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such 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 defeasance had not occurred;result
(c) in the case of the covenant defeasance optionan election under Section 8.03, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. Federal 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 no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or, insofar as bankruptcy or insolvency events described in sub-clauses (viii) and (ix) of Section 6.01(a) are concerned, at any time during the period ending on the 123rd day after the date of such deposit;
(e) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in this Indenture with respect to any of the Issuers’ securities;
(f) such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) under this Indenture or any material agreement or instrument to which the Parent Guarantor or any Restricted Subsidiary is a party or by which the Parent Guarantor or any Restricted Subsidiary is bound;
(g) such legal defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the U.S. Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(h) the Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel in the country of each Issuer’s or the Parent Guarantor’s incorporation to the effect that after the 123rd day following the deposit, the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and an Opinion of Counsel reasonably acceptable to the Trustee that the Trustee shall have a perfected security interest in such trust funds for the ratable benefit of the Holders;
(i) the Issuers or the Parent Guarantor shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuers or the Parent Guarantor with the intent of preferring the Holders over the other creditors of the Issuers or the Parent Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Issuers or the Parent Guarantor or others, or removing assets beyond the reach of the relevant creditors or increasing debts of the Issuers or the Parent Guarantor to the detriment of the relevant creditors;
(j) no event or condition shall exist that would prevent the Issuers from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 123rd day after the date of such deposit; and
(ek) the Company delivers Issuers or the Parent Guarantor shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the legal defeasance and discharge of or the Notes covenant defeasance, as contemplated by this Article Eight the case may be, have been complied with.
(l) If the funds deposited with the Trustee to effect covenant defeasance are insufficient to pay the principal of, premium, if any, and interest on the Notes when due because of any acceleration occurring after an Event of Default, then the Issuers and the Guarantors shall remain liable for such payments.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Conditions to Defeasance. (a) The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The the Company shall irrevocably have deposited or caused to be deposited deposits in trust with the Trustee money or U.S. Government Obligations (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, sufficient in the opinion of a nationally recognized firm certified public accounting firm) for the payment of independent public accountantsprincipal, to pay and discharge and which shall be applied by the Trustee premium (or other qualifying trustee) to pay the principal of (and premium, if any) and interest on the outstanding applicable issue of Notes to redemption or maturity, as the case may be (provided that if such redemption is pursuant to Section 6(b) of the applicable Notes Supplemental Indenture, (x) the amount of money or U.S. Government Obligations that the Company must irrevocably deposit or cause to be deposited shall be determined using an assumed Applicable Premium for the applicable series of Notes calculated as of the date of such deposit, as calculated by the Company in good faith, and (y) the Company must irrevocably deposit or cause to be deposited additional money in trust on the Maturity Date Redemption Date, as required by Section 5.5, as necessary to pay the Applicable Premium for the Notes as determined as of the date of the applicable redemption notice);
(or redemption dateii) the Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment shall provide cash at such times and in such amounts as shall be sufficient to pay principal, if applicable) of such principal (and premium, if any, and interest when due on all the Notes to maturity or redemption, as the case may be;
(iii) 91 days pass after the deposit is made and during the 91-day period no Default specified in Section 6.1(7) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments (8) with respect to the Notes. Before such a deposit, Company occurs which is continuing at the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all end of the outstanding Notes at a future date in accordance with Article Threeperiod;
(biv) the deposit does not constitute a default under any other agreement binding on the Company;
(v) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment advisor under the Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes will Holders shall not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will shall be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(cvii) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will Holders shall not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant deposit and defeasance and will shall be subject to U.S. Federal 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 deposit and defeasance had not occurred;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company delivers to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.. Notwithstanding the foregoing, the Opinion of Counsel required by Sections 8.2(a)(vi) and (vii) need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable, (y) will become due and payable at their Stated Maturity within the same calendar year or (z) have been called for redemption within the same calendar year. Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article V.
Appears in 1 contract
Samples: Indenture (Lannett Co Inc)
Conditions to Defeasance. The Company Issuer may exercise its legal defeasance option or its covenant defeasance option only if:
(a) The Company Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, dollars or non-callable Government Securities, 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 and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any) and interest on the outstanding Notes on the Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company Issuer may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(b) in the case of the legal defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company 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 U.S. Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders and beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such 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 defeasance had not occurred;
(c) in the case of the covenant defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders and beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(e) the Company Issuer delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes as contemplated by this Article Eight have been complied with.
Appears in 1 contract
Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) cash in U.S. Dollars in an amount, or (B) U.S. Government Obligations which through the Notesscheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, cash in U.S. dollars, non-callable Government SecuritiesDollars in an amount, or (C) a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and premium, if any) and interest (including any Special Interest) on the outstanding Notes Securities on the Stated Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Securities Obligations to said payments with respect to the NotesSecurities. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes Securities at a future date in accordance with Article Three;
Three which notice shall be irrevocable. For this purpose, “U.S. Government Obligations” means securities that are (bx) in the case direct obligations of the legal defeasance option, United States of America for the Company shall have delivered to the Trustee an Opinion timely payment of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, which its full faith and credit is pledged or (iiy) since obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the date United States of this Indenture there has been America the timely payment of which is unconditionally guaranteed as a change in full faith and credit obligation by the applicable U.S. Federal income tax lawUnited States of America, which, in either case case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the effect that, and based thereon holder of such Opinion of Counsel shall confirm that, depository receipt from any amount received by the beneficial owners custodian in respect of the outstanding Notes will not recognize income, gain U.S. Government Obligation or loss for U.S. Federal income tax purposes as a result the specific payment of such defeasance and will be subject to U.S. Federal income tax principal of or interest on the same amounts, in the same manner and at the same times as would have been the case if U.S. Government Obligation evidenced by such defeasance had not occurreddepository receipt;
(c) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(e) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes as contemplated by this Article Eight have been complied with.
Appears in 1 contract
Samples: Indenture (Amc Entertainment Inc)
Conditions to Defeasance. The Company may In order to exercise its either legal defeasance option or its covenant defeasance option only ifdefeasance:
(a) The Company shall the Issuers or the Parent Guarantor must irrevocably have deposited deposit or caused cause to be deposited as trust funds in trust with the Trustee (or another trustee satisfying such other party as directed by the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust Trustee), for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally an internationally recognized law firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and accrued and unpaid interest and any Additional Amounts, if any, on the outstanding Notes on the Stated Maturity Date (or on the applicable redemption date, as the case may be, and the Issuers or the Parent Guarantor must (i) specify whether the Notes are being defeased to maturity or to a particular redemption date; and (ii) if applicable) of such principal (and premium, if any) or installment of interest; provided that have delivered to the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a an irrevocable notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threeof such principal, premium, if any, or interest;
(b) in the case of the legal defeasance optionan election under Section 8.02, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (iA) the Company has received from, or there has been published by, the U.S. Internal Revenue Service has either published a revenue ruling or issued to the Issuers a private letter ruling, or (iiB) since the date of this Indenture Issue Date, there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel opinion shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such legal defeasance and will be subject to U.S. Federal 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 the covenant defeasance optionan election under Section 8.03, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. Federal 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 no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or, insofar as bankruptcy or insolvency events described in sub-clauses (viii) and (ix) of Section 6.01(a) are concerned, at any time during the period ending on the 123rd day after the date of such deposit;
(e) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in this Indenture with respect to any of the Issuers’ securities;
(f) such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) under this Indenture or any material agreement or instrument to which the Parent Guarantor or any Restricted Subsidiary is a party or by which the Parent Guarantor or any Restricted Subsidiary is bound;
(g) such legal defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the U.S. Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(h) the Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel in the country of each Issuer’s or the Parent Guarantor’s incorporation to the effect that after the 123rd day following the deposit, the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and an Opinion of Counsel reasonably acceptable to the Trustee that the Trustee shall have a perfected security interest in such trust funds for the ratable benefit of the Holders;
(i) the Issuers or the Parent Guarantor shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuers or the Parent Guarantor with the intent of preferring the Holders over the other creditors of the Issuers or the Parent Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Issuers or the Parent Guarantor or others, or removing assets beyond the reach of the relevant creditors or increasing debts of the Issuers or the Parent Guarantor to the detriment of the relevant creditors;
(j) no event or condition shall exist that would prevent the Issuers from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 123rd day after the date of such deposit; and
(ek) the Company delivers Issuers or the Parent Guarantor shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the legal defeasance and discharge of or the Notes covenant defeasance, as contemplated by this Article Eight the case may be, have been complied with.
(l) If the funds deposited with the Trustee to effect covenant defeasance are insufficient to pay the principal of, premium, if any, and interest on the Notes when due because of any acceleration occurring after an Event of Default, then the Issuers and the Guarantors shall remain liable for such payments.
Appears in 1 contract
Conditions to Defeasance. The Company Bank may exercise its legal defeasance Legal Defeasance option or its covenant defeasance Covenant Defeasance option only if:
(a) The Company shall the Bank irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (money or another trustee satisfying U.S. Government Obligations which through the requirements payment of Section 7.10 who interest and principal in respect thereof in accordance with their terms shall agree provide money in an amount, or in any combination thereof, in each case, sufficient to comply pay and discharge the principal of each installment of principal and interest, if any, on the outstanding Notes on the dates such payments are due, in accordance with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders terms of the Notes, to and including the redemption date irrevocably designated by the Bank pursuant to the final paragraph of this Section 8.2 on the day on which payments are due and payable in accordance with the terms of this Indenture and of the Notes;
(b) the Bank delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash in U.S. dollars, non-callable Government Securities, or a combination thereof, at such times and in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, sufficient to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any) and interest when due on all the outstanding Notes on the Maturity Date (to maturity or redemption dateredemption, if applicable) of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(b) in as the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company 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 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such 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 defeasance had not occurredmay be;
(c) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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;
(d) No no Default or Event of Default (other than that resulting from borrowing funds to be applied to make including by reason of such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewithdeposit) shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;
(d) the Bank shall have delivered to the Trustee an opinion of recognized U.S. counsel independent of the Bank to the effect: (i) that the Holders shall not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge of certain obligations, which in the case of Section 8.1 hereof must be based on a change in law or a ruling by the U.S. Internal Revenue Service; and (ii) that the defeasance trust is not or is not required to be registered, or is registered as, an investment company under the Investment Company Act of 1940, as amended; and
(e) the Company Bank delivers to the Trustee an Opinion of Counsel and an Officers’ Certificate and an Opinion of Counsel, each stating that as to compliance with all conditions precedent provided for in this Indenture relating to the defeasance satisfaction and discharge of the Notes. Before or after a deposit, the Bank may make arrangements satisfactory to the Trustee for the redemption of Notes as contemplated at a future date in accordance with ARTICLE V hereof. If the Bank has deposited or caused to be deposited money or U.S. Government Obligations to pay or discharge the principal of (and premium, if any) and interest, if any, on the outstanding Notes to and including a redemption date on which all of the outstanding Notes are to be redeemed, such redemption date shall be irrevocably designated by a resolution of the Board of Directors of the Bank delivered to the Trustee on or prior to the date of deposit of such money or U.S. Government Obligations, and such resolution shall be accompanied by an irrevocable Bank request that the Trustee give notice of such redemption in the name and at the expense of the Bank not less than 30 nor more than 60 days prior to such redemption date in accordance with this Article Eight have been complied withIndenture.
Appears in 1 contract
Conditions to Defeasance. (a) The Company Issuers may exercise its their legal defeasance option or its their covenant defeasance option only if:
(ai) The Company shall the Issuers irrevocably have deposited or caused to be deposited deposit with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds money in trust for the benefit of the Holders of the NotesUS Dollars, cash in U.S. dollars, non-callable US Government SecuritiesObligations, or a combination thereof, in such amounts as will the principal of and the interest on which shall be sufficient, in the opinion of or a nationally recognized firm of independent public accountantscombination thereof sufficient, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of and premium (and premium, if any) and interest on the outstanding Senior Notes when due at maturity or redemption, as the case may be, including interest thereon to maturity or such redemption date;
(ii) the Issuers deliver to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the Maturity Date (or redemption datedeposited US Government Obligations, if applicable) of plus any deposited money without investment shall provide cash at such principal (times and in such amounts as shall be sufficient to pay principal, premium, if any, and interest when due on all the Senior Notes to maturity or redemption, as the case may be;
(iii) 90 days pass after the deposit is made and during the 90-day period no Default specified in Section 6.01(f) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments (g) with respect to any Issuer or BP I occurs that is continuing at the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all end of the outstanding Notes at a future date in accordance with Article Threeperiod;
(biv) the deposit does not constitute a default under any other material agreement binding on any Issuer or BP I;
(v) in the case of the legal defeasance option, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Senior Notes Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes will Holders shall not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will shall be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; provided, however, the Opinion of Counsel required with respect to a legal defeasance need not be delivered if all Senior Notes not theretofore delivered to the Trustee for cancellation have become due and payable;
(cvi) in the case of the covenant defeasance option, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will Holders shall not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant deposit and defeasance and will shall be subject to U.S. Federal 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 deposit and defeasance had not occurred;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(evii) the Company delivers Issuers deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Senior Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.
Appears in 1 contract
Conditions to Defeasance. (a) The Company Issuers may exercise its their legal defeasance option or its their covenant defeasance option only if:
(ai) The Company shall the Issuers irrevocably have deposited or caused to be deposited deposit with the Trustee (or another trustee satisfying money in US Dollars, the requirements principal of Section 7.10 who and the interest on which shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securitiesbe sufficient, or a combination thereof, in such amounts as will be thereof sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of and premium (and premium, if any) and interest on the outstanding Senior Secured Notes when due at maturity or redemption, as the case may be, including interest thereon to maturity or such redemption date;
(ii) the Issuers delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the Maturity Date (or redemption datedeposited US Dollars, if applicable) of plus any deposited money without investment shall provide cash at such principal (times and in such amounts as shall be sufficient to pay principal, premium, if any, and interest when due on all the Senior Notes to maturity or redemption, as the case may be;
(iii) 90 days pass after the deposit is made and during the 90-day period no Default specified in Section 6.01(f) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments (g) with respect to either Issuer, BP I or BP II occurs which is continuing at the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all end of the outstanding Notes at a future date in accordance with Article Threeperiod;
(biv) the deposit does not constitute a default under any other material agreement binding on either Issuer, BP I or BP II;
(v) in the case of the legal defeasance option, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Senior Secured Notes 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 outstanding Notes will Holders shall not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such deposit and defeasance and will shall be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(c) in the case of the covenant defeasance option; provided, however, the Company shall have Opinion of Counsel required with respect to a legal defeasance need not be delivered if all Senior Secured Notes not theretofore delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance cancellation have become due 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 occurredpayable;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(e) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes as contemplated by this Article Eight have been complied with.
Appears in 1 contract
Samples: Senior Secured Notes Indenture (RenPac Holdings Inc.)
Conditions to Defeasance. The Company may exercise its legal defeasance Legal Defeasance option or its covenant defeasance Covenant Defeasance option only if:
(a) The the Company shall has irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds Trustee, in trust trust, for the benefit of the Holders of the Notes, cash in U.S. dollarsDollars, certain direct non-callable Government Securitiesobligations of, or guaranteed by, the United States, or a combination thereof, in such amounts as will shall be sufficientsufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (of, and premium, if any) , and interest on the outstanding Notes (including Additional Amounts) on the Maturity Date (stated date for payment thereof or on the applicable redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that as the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company case may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threebe;
(b) in the case of the legal defeasance optionLegal Defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel stating that from a nationally recognized law firm in the U.S. reasonably acceptable to the Trustee and independent of the Company to the effect that:
(i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or ; or
(ii) since the date of this Indenture Issue Date, there has been a change in the applicable U.S. Federal federal income tax law, ; in either case to the effect that, and based thereon such Opinion of Counsel shall confirm state that, the beneficial owners of the outstanding Notes will shall not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such defeasance Legal Defeasance and will shall be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance Legal Defeasance had not occurred;
(c) in the case of the covenant defeasance optionCovenant Defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel from a nationally recognized law firm in the U.S. reasonably acceptable to the Trustee and independent of the Company to the effect that the beneficial owners of the outstanding Notes will shall not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance Covenant Defeasance and will shall be subject to U.S. Federal 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 Covenant Defeasance had not occurred;
(d) No no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have has occurred and be is continuing on the date of such deposit; andthe deposit pursuant to Section 8.2(a);
(e) the Company delivers has delivered to the Trustee an Officers’ Certificate stating that 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 Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(f) the Company has delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or any Subsidiary of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(g) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of CounselCounsel from U.S. counsel reasonably acceptable to the Trustee and independent of the Company, each stating that all conditions precedent provided for or relating to the defeasance and discharge of Legal Defeasance or the Notes as contemplated by this Article Eight Covenant Defeasance have been complied with; and
(h) the Company has delivered to the Trustee an Opinion of Counsel from U.S. counsel reasonably acceptable to the Trustee and independent of the Company to the effect that the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally.
Appears in 1 contract
Conditions to Defeasance. The Company may exercise its legal defeasance Legal Defeasance option or its covenant defeasance Covenant Defeasance option only if:
(a) The the Company shall has irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds Trustee, in trust trust, for the benefit of the Holders of the Notes, cash in U.S. dollarsDollars, certain direct non-callable Government Securitiesobligations of, or guaranteed by, the United States, or a combination thereof, in such amounts as will shall be sufficientsufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (of, and premium, if any) , and interest on the outstanding Notes (including Additional Amounts) on the Maturity Date (stated date for payment thereof or on the applicable redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that as the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company case may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threebe;
(b) in the case of the legal defeasance optionLegal Defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel stating that from a nationally recognized law firm in the U.S. reasonably acceptable to the Trustee and independent of the Company to the effect that:
(i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or ; or
(ii) since the date of this Indenture Issue Date, there has been a change in the applicable U.S. Federal federal income tax law, ; in either case to the effect that, and based thereon such Opinion of Counsel shall confirm state that, the beneficial owners of the outstanding Notes will Holders shall not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such defeasance Legal Defeasance and will shall be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance Legal Defeasance had not occurred;
(c) in the case of the covenant defeasance optionCovenant Defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel from a nationally recognized law firm in the U.S. reasonably acceptable to the Trustee and independent of the Company to the effect that the beneficial owners of the outstanding Notes will Holders shall not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance Covenant Defeasance and will shall be subject to U.S. Federal 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 Covenant Defeasance had not occurred;
(d) No no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have has occurred and be is continuing on the date of such deposit; andthe deposit pursuant to Section 8.2(a);
(e) the Company delivers has delivered to the Trustee an Officers’ Certificate stating that 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 Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(f) the Company has delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or any Subsidiary of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(g) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of CounselCounsel from U.S. counsel reasonably acceptable to the Trustee and independent of the Company, each stating that all conditions precedent provided for or relating to the defeasance and discharge of Legal Defeasance or the Notes as contemplated by this Article Eight Covenant Defeasance have been complied with; and
(h) the Company has delivered to the Trustee an Opinion of Counsel from U.S. counsel reasonably acceptable to the Trustee and independent of the Company to the effect that the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally.
Appears in 1 contract
Conditions to Defeasance. The Company may In order to exercise its either legal defeasance option or its covenant defeasance option only ifdefeasance:
(a) The Company shall the Issuers or the Parent Guarantor must irrevocably have deposited deposit or caused cause to be deposited as trust funds in trust with the Trustee (or another trustee satisfying such other party as directed by the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust Trustee), for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofthereof (in the case of the Dollar Notes), and cash in euro, European Government Obligations, or a combination thereof (in the case of the Euro Notes), in such amounts as will be sufficient, in the opinion of a nationally an internationally recognized law firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and accrued and unpaid interest and any Additional Amounts, if any, on the outstanding Notes on the Stated Maturity Date (or on the applicable redemption date, as the case may be, and the Issuers or the Parent Guarantor must (i) specify whether the Notes are being defeased to maturity or to a particular redemption date; and (ii) if applicable) of such principal (and premium, if any) or installment of interest; provided that have delivered to the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a an irrevocable notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threeof such principal, premium, if any, or interest;
(b) in the case of the legal defeasance optionan election under Section 8.02, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (iA) the Company has received from, or there has been published by, the U.S. Internal Revenue Service has either published a revenue ruling or issued to the Issuers a private letter ruling, or (iiB) since the date of this Indenture Issue Date, there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel opinion shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such legal defeasance and will be subject to U.S. Federal 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 the covenant defeasance optionan election under Section 8.03, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. Federal 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 no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or, insofar as bankruptcy or insolvency events described in clauses (ix) and (x) of Section 6.01(a) are concerned, at any time during the period ending on the 123rd day after the date of such deposit;
(e) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in this Indenture with respect to any of the Issuers’ securities;
(f) such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) under, this Indenture or any material agreement or instrument to which the Parent Guarantor or any Restricted Subsidiary is a party or by which the Parent Guarantor or any Restricted Subsidiary is bound;
(g) such legal defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the U.S. Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(h) the Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel in the country of each Issuer’s or the Parent Guarantor’s incorporation to the effect that after the 123rd day following the deposit, the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and an Opinion of Counsel reasonably acceptable to the Trustee that the Trustee shall have a perfected security interest in such trust funds for the ratable benefit of the Holders;
(i) the Issuers or the Parent Guarantor shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuers or the Parent Guarantor with the intent of preferring the Holders over the other creditors of the Issuers or the Parent Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Issuers or the Parent Guarantor or others, or removing assets beyond the reach of the relevant creditors or increasing debts of the Issuers or the Parent Guarantor to the detriment of the relevant creditors;
(j) no event or condition shall exist that would prevent the Issuers from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 123rd day after the date of such deposit; and
(ek) the Company delivers Issuers or the Parent Guarantor shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the legal defeasance and discharge of or the Notes covenant defeasance, as contemplated by this Article Eight the case may be, have been complied with. If the funds deposited with the Trustee to effect covenant defeasance are insufficient to pay the principal of, premium, if any, and interest on the Notes when due because of any acceleration occurring after an Event of Default, then the Issuers and the Guarantors shall remain liable for such payments.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Conditions to Defeasance. The Company may In order to exercise its legal defeasance option either Legal Defeasance or its covenant defeasance option only if:Covenant Defeasance under Sections 8.1, 8.2 and 8.3 hereof
(a) The the Company shall must irrevocably have deposited or caused to be deposited deposit with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds Trustee, in trust trust, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government SecuritiesObligations, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Obligations, in such amounts as will be sufficient, in the case of non-callable U.S. Government Obligations only in the opinion of a nationally an internationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of of, or interest (including Additional Amounts) and premium, if any) and interest on , on, the outstanding Notes on the Maturity Date (stated date for payment thereof or redemption dateon the applicable Redemption Date, if applicable) of such principal (as the case may be, and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give must specify whether the Trustee, in accordance with Section 3.01 hereof, Notes are being defeased to such stated date for payment or to a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threeparticular Redemption Date;
(b) in the case of the legal defeasance optionLegal Defeasance, the Company shall have delivered must deliver to the Trustee an Opinion opinion of Counsel stating independent U.S. counsel confirming that (ia) the Company has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, ruling or (iib) since the date of this Indenture Issue Date, there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall will confirm that, the holders and beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such defeasance Legal Defeasance and will be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance Legal Defeasance had not occurred;
(c) in the case of the covenant defeasance optionCovenant Defeasance, the Company shall have delivered must deliver to the Trustee an Opinion opinion of Counsel to the effect independent U.S. counsel confirming that the holders and beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance Covenant Defeasance and will be subject to U.S. Federal 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 Covenant Defeasance had not occurred;
(d) No Default in the case of Legal Defeasance or Event Covenant Defeasance, the Company must deliver to the Trustee either (i) an opinion of Default independent counsel in Canada to the effect that, based upon Canadian law then in effect, the holders and beneficial owners of the outstanding Notes will not recognize income, gain or loss for Canadian federal, provincial or territorial or other Canadian income tax purposes, as a result of Legal Defeasance or Covenant Defeasance, as the case may be, and will be subject to Canadian income taxes on the same amounts and in the same manner and at the same times as would have been the case if such Legal Defeasance or Covenant Defeasance, as the case may be, had not occurred or (ii) a ruling directed to the Trustee received from tax authorities of Canada to the same effect as the opinion of counsel described in clause (i) above;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture or any other agreements being defeased, discharged or replaced) to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound;
(f) the Company must deliver to the Trustee an Officer’s Certificate stating that resulting from borrowing funds to be applied to make such the deposit and was not made by the Company with the intent of preferring the Holders over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any similar and simultaneous deposit relating to other Indebtedness, and, in each case creditors of the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such depositCompany or others; and
(eg) the Company delivers must deliver to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, subject to customary assumptions and qualifications, each stating that all conditions precedent relating to the defeasance and discharge of Legal Defeasance or the Notes as contemplated by this Article Eight Covenant Defeasance have been complied with.
Appears in 1 contract
Conditions to Defeasance. The Company may In order to exercise either its legal defeasance option Legal Defeasance Option and give effect thereto (“Legal Defeasance”) or its covenant defeasance option only if:
Covenant Defeasance Option and give effect thereto (a“Covenant Defeasance”), (i) The the Company shall irrevocably have deposited or caused to be deposited deposit with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) Trustee, as trust funds in trust trust, for the benefit of the Holders of the NotesHolders, cash in Dollars, U.S. dollars, non-callable Government SecuritiesObligations, or a combination thereof, maturing as to principal and interest in such amounts as will be sufficient, without consideration of any reinvestment of such interest, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and interest on the outstanding Notes on the Stated Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of principal or interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(bii) in the case of the legal defeasance optionLegal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating confirming that (iA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, ruling or (iiB) since the date of this Indenture Indenture, there has been a change in the applicable U.S. Federal 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such defeasance Legal Defeasance and will be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance Legal Defeasance had not occurred;
; (ciii) in the case of the covenant defeasance optionCovenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect confirming that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance Covenant Defeasance and will be subject to U.S. Federal 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 Covenant Defeasance had not occurred;
; (div) No no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(ev) 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 Company is a party or by which it is bound; (vi) the Company delivers shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Notes over the other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; (vii) no event or condition shall exist that would prevent the Company from making payments of the principal of, premium, if any, and inter- est on the Notes on the date of such deposit; and (viii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance and discharge of Legal Defeasance or the Notes Covenant Defeasance, as contemplated by this Article Eight the case may be, have been complied with.
Appears in 1 contract
Samples: Indenture (E.W. SCRIPPS Co)
Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option with respect to a series of Securities only ifif the following conditions are satisfied:
(a) The the Company shall has irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of such series with the NotesTrustee or a Paying Agent or a trustee satisfactory to the Trustee and the Company, cash under the terms of an irrevocable trust agreement in U.S. dollarsform and substance satisfactory to the Trustee and any such Paying Agent, non-callable Government Securities(i) money in an amount or Eligible Obligations sufficient, or a combination thereof, (ii) U.S. Government Obligations or Eligible Obligations that shall be payable as to principal and interest in such amounts and at such times as will be are sufficient, in the opinion of a nationally recognized firm of independent public accountants, accountants expressed in a written certification thereof delivered to pay and discharge and which shall be applied by the Trustee (without consideration of any reinvestment of such interest), or other qualifying trustee(iii) any combination thereof in an amount sufficient, to pay the principal of (and premiumof, if any) and interest on and any Additional Amounts payable with respect to the outstanding Notes Securities of such series and any mandatory sinking fund or analogous payments thereon on the Maturity Date dates such installments are due to redemption or Stated Maturity, (or redemption date, if applicabley) the trustee of such principal (and premium, if any) or installment of interest; provided that the Trustee irrevocable trust shall have been irrevocably instructed to apply pay such money or the proceeds of such U.S. Government Obligations or Eligible Obligations to the Trustee and (z) the Trustee or Paying Agent shall have been irrevocably instructed in writing to apply the deposited money and the proceeds from U.S. Government Obligations or Eligible Obligations in accordance with the terms of this Indenture and the terms of the Securities of such series to said payments the payment of principal of, interest on and any Additional Amounts payable with respect to the Notes. Before Securities of such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threeseries;
(b) such deposit described in clause (a) of this Section 8.2 will not result in a breach or violation of, or constitute a Default under, any other agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default or Event of Default shall have occurred and be continuing (i) as of the date of such deposit or (ii) insofar as Sections 6.1(d) and 6.1(e) are concerned at any time during the period ending on the 91st day after the date of such deposit or, if longer, ending on the day following the expiration of the longest preference period applicable to the Company in respect of such deposit (it being understood that the condition in this clause (ii) is a condition subsequent and shall not be deemed satisfied until the expiration of such period);
(d) the Company has paid or caused to be paid all sums currently due and payable by the Company hereunder and under the Securities with respect to such series including but not limited to all amounts due under Section 7.7;
(e) such defeasance shall not cause or permit any Securities then listed on any national securities exchange to be delisted;
(f) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for herein relating to the termination by the Company of its obligations as provided in this Section 8.2 have been complied with;
(g) in the case of the legal defeasance option, the Company shall have has delivered to the Trustee an Opinion of Counsel stating that either (i) the Company has a ruling received from, or there has been published by, from the Internal Revenue Service a rulingto the effect that, or (ii) an Opinion of Counsel who is not an employee of the Company stating that, since the date of this Indenture first set forth hereinabove, there has been a change in the applicable U.S. Federal federal income tax law, in and based upon either case to the effect that, and based thereon (i) or (ii) such Opinion of Counsel shall confirm that, the beneficial owners Holders of the outstanding Notes Securities of such series will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such the Company's exercise of its legal defeasance option under this Section 8.2 and will be subject to U.S. Federal federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such legal defeasance option had not occurred;been exercised; and
(ch) in the case of the covenant defeasance option, the Company shall have has delivered to the Trustee either (i) a ruling received from the Internal Revenue Service to the effect that, or (ii) an Opinion of Counsel to the effect that the beneficial owners by recognized counsel who is not an employee of the outstanding Notes Company stating that, the Holders of the Securities of such series will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such the Company's exercise of its covenant defeasance option under this paragraph and will be subject to U.S. Federal federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such covenant defeasance option had not occurred;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(e) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes as contemplated by this Article Eight have been complied withexercised.
Appears in 1 contract
Samples: Exhibit (Interface Inc)
Conditions to Defeasance. (a) The Company Issuer may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The Company shall the Issuer irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollarsDollars, non-callable U.S. Government SecuritiesObligations or a combination thereof in an amount sufficient, or U.S. Government Obligations, the principal of which will be sufficient, or a combination thereofthereof sufficient, to pay the principal of and premium (if any) on the Securities when due at maturity or redemption, as the case may be;
(ii) the Issuer delivers to the Trustee a certificate from a firm of independent accountants expressing its opinion that the payments of principal when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, sufficient to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any, when due on all the Securities to maturity or redemption, as the case may be;
(iii) 123 days pass after the deposit is made and interest on during the outstanding Notes on the Maturity Date (or redemption date, if applicable) of such principal (and premium, if any123-day period no Default specified in Section 6.01(f) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments Section 6.01(g) with respect to the Notes. Before such a deposit, Issuer occurs that is continuing at the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all end of the outstanding Notes at a future date in accordance with Article Threeperiod;
(biv) the deposit does not constitute a default under any other agreement binding on the Issuer;
(v) in the case of the legal defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion opinion of Counsel tax counsel of recognized standing in the United States stating that (i1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service IRS a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion opinion of Counsel tax counsel of recognized standing in the United States shall confirm that, the beneficial owners of the outstanding Notes Holders will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(cvi) in the case of the covenant defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion opinion of Counsel tax counsel of recognized standing in the United States to the effect that the beneficial owners of the outstanding Notes Holders will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant deposit and defeasance and will be subject to U.S. Federal 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 deposit and defeasance had not occurred;
(dvii) No Default the right of any Holder to receive payment of principal of, and premium and interest, if any, on, such Holder’s Securities on or Event after the due dates therefor or to institute suit for the enforcement of Default (other than that resulting from borrowing funds any payment on or with respect to such Xxxxxx’s Securities shall not be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such depositimpaired; and
(eviii) the Company Issuer delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes Securities to be so defeased and discharged as contemplated by this Article Eight 8 have been complied with.
(b) Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of such Securities at a future date in accordance with Article 3.
Appears in 1 contract
Conditions to Defeasance. The Company Issuer may exercise its legal defeasance option or its covenant defeasance option only if:
(a) The Company shall the Issuer irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds money in trust for the benefit of the Holders of the Noteseuro, cash in U.S. dollars, non-callable Euro Government Securities, Obligations or a combination thereofthereof for the payment of principal (including premium, if any) of, and interest and Additional Amounts, if any, on the Notes to maturity or a Redemption Date permitted under this Indenture;
(b) the Issuer delivers to the Trustee a certificate from a U.S. nationally recognized accounting firm expressing their opinion that the payment of principal (including premium, if any) of, and interest and Additional Amounts, if any, when due and without reinvestment on the deposited Euro Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, sufficient to pay and discharge and which shall be applied by the Trustee principal (or other qualifying trustee) to pay the principal of (and including premium, if any) ), and interest on the outstanding Notes on the Maturity Date (or redemption date, if applicable) of such principal (and premiumAdditional Amounts, if any) , when due on all the Notes to maturity or installment of interest; provided that redemption, as the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company case may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threebe;
(bc) no Default or Event of Default has occurred and is continuing on the date of the deposit and after giving effect thereto;
(d) the deposit does not constitute a default under any other material agreement or instrument binding on the Issuer or the Company;
(e) in the case of the legal defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel stating that that:
(i) the Company Issuer has received from, or there has been published by, from the U.S. Internal Revenue Service a ruling, or or
(ii) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes Noteholders will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such defeasance and will be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred;
(cf) in the case of the covenant defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes Noteholders will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. Federal 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 (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eg) the Company Issuer delivers to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of this Indenture and the Notes as contemplated by this Article Eight 8 have been complied with. Simultaneous with a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of Notes at a future date in accordance with Article 3.
Appears in 1 contract
Samples: Indenture (Energizer Holdings, Inc.)
Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight VIII applicable to it) as trust funds in trust for the benefit of the Holders of the NotesSecurities, cash in U.S. dollarsDollars, non-callable Government Securities, Securities or a combination thereof, in such amounts as will shall be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any) and interest (including any Special Interest) on the outstanding Notes Securities on the Stated Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before Securities; before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof3.01, a notice of its election to redeem all of the outstanding Notes Securities at a future date in accordance with Article ThreeIII, which notice shall be irrevocable;
(b) No Default or Event of Default shall have occurred and be continuing on the date of such deposit or, insofar as Section 6.01(g), (h) or (i) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(c) the deposit does not constitute a default hereunder or under any other material agreement binding on the Company;
(d) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940;
(e) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company 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 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 outstanding Notes Holders 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 defeasance had not occurred;
(cf) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes Holders 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eg) the Company delivers to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes Securities as contemplated by this Article Eight VIII have been complied with.
Appears in 1 contract
Samples: Indenture (National CineMedia, LLC)
Conditions to Defeasance. (a) The Company Issuers may exercise its their legal defeasance option or its their covenant defeasance option only if:
(ai) The Company shall the Issuer irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollarsDollars, non-callable U.S. Government Securities, 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 and discharge and which shall be applied by the Trustee (or other qualifying trustee) thereof sufficient to pay the principal of and premium (and premium, if any) and interest on the outstanding Notes when due at maturity or redemption, as the case may be;
(ii) with respect to U.S. Government Obligations or a combination of money and U.S. Government Obligations, the Issuer delivers to the Trustee a certificate from a nationally recognized firm of independent accountants, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm expressing their opinion that the payments of principal and interest when due and without reinvestment on the Maturity Date (or redemption datedeposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, if applicable) of such principal (and premium, if any) , and interest on the Notes to redemption or installment of interestmaturity, as the case may be; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee shall have been irrevocably instructed equal to apply such money the Applicable Premium calculated as of the earlier of the date on which arrangements referred to in the succeeding sentence are entered into and the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the proceeds date of such Government Securities to said payments the redemption;
(iii) no Default specified in Section 6.01(f) or (g) with respect to the Notes. Before Issuer shall have occurred or is continuing on the date of such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(biv) the deposit does not constitute a default under any other material agreement or instrument binding on the Issuer;
(v) in the case of the legal defeasance option, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes holders will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amountsamount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred. Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer;
(vi) such exercise does not impair the right of any holder to receive payment of principal of, premium, if any, and interest on such holder’s Notes on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such holder’s Notes;
(vii) in the case of the covenant defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(c) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company Issuer delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.
(b) Before or after a deposit, the Issuers may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 1 contract
Samples: Indenture (Mallinckrodt PLC)
Conditions to Defeasance. The Company Issuer may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The Company Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight VIII applicable to it) as trust funds in trust for the benefit of the Holders of the NotesHolders, cash in U.S. dollarsDollars, non-callable Government Securities, Securities or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any, on) and interest on the outstanding Notes Securities on the Stated Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the NotesSecurities. Before such a deposit, the Company Issuer may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes Securities at a future date in accordance with Article ThreeIII, which notice shall be irrevocable;
(bii) in the case of the legal defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company 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 U.S. Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm state that, the beneficial owners of the outstanding Notes Holders 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 defeasance had not occurred;
(ciii) in the case of the covenant defeasance option, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect stating that the beneficial owners of the outstanding Notes Holders 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;
(div) No Default such legal defeasance or Event of Default (other than that resulting from borrowing funds covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any material agreement or instrument to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case which the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such depositIssuer is a party or by which it is bound; and
(ev) the Company Issuer delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes Securities as contemplated by this Article Eight VIII have been complied with.
Appears in 1 contract
Samples: Indenture (SFX Entertainment, INC)
Conditions to Defeasance. The Company may In order to exercise its either legal defeasance option or its covenant defeasance option only ifdefeasance:
(a) The Company shall the Issuer must irrevocably have deposited deposit or caused cause to be deposited as trust funds in trust with the Trustee (or another trustee satisfying such other party as directed by the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust Trustee), for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofthereof (in the case of the Dollar Notes), and cash in euro, European Government Obligations, or a combination thereof (in the case of the Euro Notes), in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, sufficient to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and accrued and unpaid interest and any Additional Amounts, if any, on the outstanding Notes on the Stated Maturity Date (or on the applicable redemption date, as the case may be, and the Issuer must (i) specify whether the Notes are being defeased to maturity or to a particular redemption date; and (ii) if applicable) of such principal (and premium, if any) or installment of interest; provided that have delivered to the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a an irrevocable notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threeof such principal, premium, if any, or interest;
(b) in the case of the legal defeasance optionan election under Section 8.02, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (iA) the Company has received from, or there has been published by, the U.S. Internal Revenue Service has either published a revenue ruling or issued to the Issuer a private letter ruling, or (iiB) since the date of this Indenture Issue Date, there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel opinion shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such legal defeasance and will be subject to U.S. Federal 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 the covenant defeasance optionan election under Section 8.03, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. Federal 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 no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or, insofar as bankruptcy or insolvency events described in Section 6.01(a)(viii) and (ix) are concerned, at any time during the period ending on the 123rd day after the date of such deposit;
(e) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in this Indenture with respect to any of the Issuer’s securities;
(f) such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) under, this Indenture or any material agreement or instrument to which the Issuer or any of its Restricted Subsidiaries is a party or by which the Issuer or any of its Restricted Subsidiaries is bound;
(g) such legal defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the U.S. Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(h) the Issuer shall have delivered to the Trustee an Opinion of Counsel in the country of the Issuer’s incorporation to the effect that after the 123rd day following the deposit, the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and an Opinion of Counsel reasonably acceptable to the Trustee that the Trustee shall have a perfected security interest in such trust funds for the ratable benefit of the Holders;
(i) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others, or removing assets beyond the reach of the relevant creditors or increasing debts of the Issuer to the detriment of the relevant creditors;
(j) no event or condition shall exist that would prevent the Issuer from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 123rd day after the date of such deposit; and
(ek) the Company delivers Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the legal defeasance and discharge of or the Notes covenant defeasance, as contemplated by this Article Eight the case may be, have been complied with.
(l) If the funds deposited with the Trustee to effect covenant defeasance are insufficient to pay the principal of, premium, if any, and interest on the Notes when due because of any acceleration occurring after an Event of Default, then the Issuer shall remain liable for such payments.
Appears in 1 contract
Conditions to Defeasance. The Company may In order to exercise its either legal defeasance option or its covenant defeasance option only ifdefeasance:
(a) The Company shall the Issuers or the Parent Guarantor must irrevocably have deposited deposit or caused cause to be deposited as trust funds in trust with the Trustee (or another trustee satisfying such other party as directed by the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust Trustee), for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofthereof (in the case of the Dollar Notes), and cash in euro, European Government Obligations, or a combination thereof (in the case of the Euro Notes), in such amounts as will be sufficient, in the opinion of a nationally an internationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and accrued and unpaid interest and any Additional Amounts, if any, on the outstanding Notes on the Stated Maturity Date (or on the applicable redemption date, as the case may be, and the Issuers or the Parent Guarantor must (i) specify whether the Notes are being defeased to maturity or to a particular redemption date; and (ii) if applicable) of such principal (and premium, if any) or installment of interest; provided that have delivered to the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a an irrevocable notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threeof such principal, premium, if any, or interest;
(b) in the case of the legal defeasance optionan election under Section 8.02, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (iA) the Company has received from, or there has been published by, the U.S. Internal Revenue Service has either published a revenue ruling or issued to the Issuers a private letter ruling, or (iiB) since the date of this Indenture Issue Date, there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel opinion shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such legal defeasance and will be subject to U.S. Federal 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 the covenant defeasance optionan election under Section 8.03, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. Federal 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 no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or, insofar as bankruptcy or insolvency events described in Section 6.01(a)(xi) and (xii) are concerned, at any time during the period ending on the 123rd day after the date of such deposit;
(e) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in this Indenture with respect to any of the Issuers’ securities;
(f) such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) under, this Indenture or any material agreement or instrument to which the Parent Guarantor or any Restricted Subsidiary is a party or by which the Parent Guarantor or any Restricted Subsidiary is bound;
(g) such legal defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the U.S. Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(h) the Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel in the country of each Issuer’s or the Parent Guarantor’s incorporation to the effect that after the 123rd day following the deposit, the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and an Opinion of Counsel reasonably acceptable to the Trustee that the Trustee shall have a perfected security interest in such trust funds for the ratable benefit of the Holders;
(i) the Issuers or the Parent Guarantor shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuers or the Parent Guarantor with the intent of preferring the Holders over the other creditors of the Issuers or the Parent Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Issuers or the Parent Guarantor or others, or removing assets beyond the reach of the relevant creditors or increasing debts of the Issuers or the Parent Guarantor to the detriment of the relevant creditors;
(j) no event or condition shall exist that would prevent the Issuers from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 123rd day after the date of such deposit; and
(ek) the Company delivers Issuers or the Parent Guarantor shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the legal defeasance and discharge of or the Notes covenant defeasance, as contemplated by this Article Eight the case may be, have been complied with.
(l) If the funds deposited with the Trustee to effect covenant defeasance are insufficient to pay the principal of, premium, if any, and interest on the Notes when due because of any acceleration occurring after an Event of Default, then the Issuers and the Guarantors shall remain liable for such payments.
Appears in 1 contract
Conditions to Defeasance. (a) The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The the Company irrevocably deposits in trust with the Trustee money or U.S. Government Obligations, or a combination thereof sufficient to pay the principal of, premium (if any) and interest (without reinvestment), on the Notes when due at maturity or redemption, as the case may be;
(ii) with respect to U.S. Government Obligations or a combination of money and U.S. Government Obligations, the Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm, expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations, plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, premium, if any, and interest when due on the Notes to maturity or redemption, as the case may be; provided that upon any defeasance that requires the payment of the Applicable Premium, the amount deposited shall irrevocably have be sufficient for purposes of this Indenture to the extent that an amount is deposited or caused with the Trustee equal to the Applicable Premium, calculated as of the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee (or another trustee satisfying on the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit date of the Holders of the Notes, cash redemption;
(iii) no Default specified in U.S. dollars, non-callable Government Securities, 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 and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any) and interest on the outstanding Notes on the Maturity Date (or redemption date, if applicable) of such principal (and premium, if anySection 6.01(f) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments (g) with respect to the Notes. Before Company shall have occurred or is continuing on the date of such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(biv) the deposit does not constitute a default under any other material agreement or instrument binding on the Company;
(v) the Company shall have delivered to the Trustee in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred. Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year, or if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;
(cvi) such exercise does not impair the right of any holder to receive payment of principal of, premium, if any, and interest on such holder’s Notes on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such holder’s Notes;
(vii) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such covenant deposit and defeasance had not occurred;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.
(b) Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 1 contract
Samples: Indenture (XPO Logistics, Inc.)
Conditions to Defeasance. The Company may In order to exercise its legal defeasance option either Legal Defeasance or its covenant defeasance option only ifCovenant Defeasance:
(a) The Company shall the Issuers must irrevocably have deposited deposit or caused cause to be deposited in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust Trustee, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government SecuritiesObligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally an internationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and interest interest, on the outstanding Notes on the Stated Maturity Date (or on the applicable redemption date, as the case may be, and the Issuers must (i) specify whether the Notes are being defeased to Maturity or to a particular redemption date; and (ii) if applicable) of such principal (and premium, if any) or installment of interest; provided that have delivered to the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election an Officer’s Certificate to redeem all of the outstanding Notes at a future date in accordance with Article Threeof such principal, premium, if any, or interest;
(b) in the case of the legal defeasance optionan election under Section 8.02, the Company shall Issuers must have delivered to the Trustee an Opinion of Counsel stating that (ix) the Company has Issuers have received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (iiy) since the date of this Indenture Indenture, there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel opinion shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such defeasance Legal Defeasance and will be subject to U.S. Federal federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance Legal Defeasance had not occurred;
(c) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(e) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes as contemplated by this Article Eight have been complied with.
Appears in 1 contract
Samples: Indenture (Transact LTD)
Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(a1) The the Company shall irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (money or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government SecuritiesObligations, or a combination thereof, in such amounts as will be sufficientsufficient to pay the principal of, in premium, if any, on and interest (including Additional Amounts) on all the opinion of Notes to Maturity or to the applicable Redemption Date, as the case may be;
(2) the Company delivers to the Trustee a nationally certificate from an internationally recognized firm of independent public accountants, accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the when due principal of (and of, premium, if any) , on and interest on (including Additional Amounts) on, all the outstanding Notes on the to Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a depositapplicable Redemption Date, as the Company case may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threebe;
(b3) the Company shall have delivered to the Trustee an Opinion of Counsel, subject to certain customary qualifications, to the effect that the funds so deposited will not be subject to any rights of any other holders of Debt of the Company;
(4) the deposit does not constitute a default under any other agreement binding on the Company;
(5) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the U.S. Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (ii) since the date of this Indenture December 5, 2014 there has been a change in the applicable U.S. Federal United States 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 outstanding Notes Holders will not recognize income, gain or loss for U.S. Federal United States federal income tax purposes as a result of such defeasance and will be subject to U.S. Federal 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;
(c7) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes Holders will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. Federal 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 (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(e) 8) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes and this Indenture as contemplated by this Article Eight IV have been complied with.
Appears in 1 contract
Samples: Indenture (Gruma Sab De Cv)
Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(a1) The the Company shall irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust Trustee, for the benefit of the Holders of the NotesHolders, cash in U.S. dollarsDollars, non-callable U.S. Government SecuritiesObligations, or a combination thereof, in such amounts as will shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and interest on the outstanding Notes on the Maturity Date (or redemption date, if applicable) stated maturity of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money interest or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Threeupon redemption;
(b2) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company 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 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 Holders of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such defeasance and will shall 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 defeasance had not occurred;
(c) , which such opinion, in the case of legal defeasance, shall also state that (A) the covenant defeasance optionCompany has received from, or there has been published by, the Company shall have delivered Internal Revenue Service a ruling to such effect or (B) since the Trustee an Opinion of Counsel to Effective Date there has been a change in the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. applicable Federal income tax purposes as a result of laws or regulations to such covenant defeasance and will be subject effect or (C) there exists controlling precedent 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 occurredeffect;
(d3) No no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
(4) such defeasance shall not result in a breach or violation of or constitute a default under any material agreement or instrument to which the Company is a party or by which it is bound; and
(e5) the Company delivers shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the such defeasance and discharge of the Notes as contemplated by this Article Eight have been complied withsatisfied. Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Notes at a future date in accordance with Article 3.
Appears in 1 contract
Conditions to Defeasance. The Company following shall be the conditions to the application of Section 3.04 or Section 3.05 to any applicable series of Debentures or any Debentures of such series, as the case may exercise its legal defeasance option or its covenant defeasance option only if:be
(a) The either
(i) with respect to all Outstanding Debentures of such series or such Debentures of such Series, as the case may be, with reference to this Section 3.06, the Company shall irrevocably have has deposited or caused to be deposited with the Trustee Trustee, under the terms of an escrow trust agreement satisfactory to the Trustee, irrevocably (or another trustee satisfying the requirements of Section 7.10 who shall agree but subject to comply with the provisions of this Article Eight applicable to it) Section 3.02 and the last paragraph of Section 9.03), as trust funds in trust for trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the NotesDebentures of such series, cash (A) lawful money of the United States in U.S. dollars, non-callable Government Securitiesan amount, or (B) U.S. Government Obligations that through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than the opening of business on the due dates of any payment referred to in clause (A) or (B) of this subparagraph (a)(i) lawful money of the United States in an amount, or (C) a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee1) to pay the principal of (and premium, if any) and interest on the outstanding Notes on the Maturity Date (or redemption date, if applicable) each installment of such principal (and premium, if any) and interest on such Debentures the Stated Maturity of such principal or installment of interest; provided that principal or interest or upon optional redemption and (2) any mandatory sinking fund payments or analogous payments applicable to the Trustee shall have been irrevocably instructed to apply such money or the proceeds Debentures of such Government Securities to said series on the day on which such payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, are due and payable in accordance with Section 3.01 hereof, a notice the terms of its election to redeem all this Indenture and of the outstanding Notes at a future date in accordance with Article ThreeDebentures of such series; or
(ii) the Company has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 2.01, to be applicable to the Debentures of such series;
(b) the Company has paid or caused to be paid all other sums payable with respect to the Debentures of such series;
(c) such deposit for the benefit of Holders of Debentures of such series will not result in a breach or violation of, or constitute a default under, this Indenture, any material indenture, or any other agreement or instrument to which the Company or its subsidiaries or any of their properties is a party or by which any of them is bound;
(d) no Event of Default or event (including such deposit) that with the giving of notice or lapse of time, or both, would become an Event of Default with respect to the Debentures of such series shall have occurred and be continuing on the date of such deposit and no Event of Default under Section 4.01(e) or Section 4.01(f) or event that, with the giving of notice or lapse of time, or both, would become an Event of Default under Section 4.01(e) or Section 4.01(f), shall have occurred and be continuing on the 91st day after such date;
(e) in the case event of an election to have Section 3.04 apply to the legal defeasance optionDebentures of any series, the Company shall have has delivered to the Trustee (i) an Opinion of Counsel stating that (i) satisfactory to the Company has received from, or there has been published by, Trustee to the Internal Revenue Service a rulingeffect, or (ii) since the date of this Indenture there has been a change in the applicable U.S. Federal income tax law, in either case an Internal Revenue Service ruling satisfactory to the effect thatTrustee to the effect, and based thereon that the Holders of Debentures of such Opinion of Counsel series shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to U.S. Federal federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
(cf) in the case event of the covenant defeasance optionan election to have Section 3.05 apply to Debentures of any series, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners Holders of the outstanding Notes Debentures of such series will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to the Debentures of such covenant defeasance series and will be subject to U.S. Federal United States federal income tax on the same amountsamount, in the same manner and at the same times as would have been be the case if such covenant defeasance had deposit and Covenant Defeasance were not occurredto occur;
(dg) No Default if the Debentures of such series are then listed on any domestic or Event foreign securities exchange, the Company shall have delivered to the Trustee an Opinion of Default (other than Counsel to the effect that resulting from borrowing funds such deposit, defeasance and discharge will not cause the Debentures of such series to be applied delisted;
(h) no default in the payment of the principal (and premium, if any) or any interest on any Senior Indebtedness beyond any applicable grace period shall have occurred and be continuing;
(i) no other default with respect to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) Senior Indebtedness shall have occurred and be continuing on and shall have resulted in the date acceleration of such depositSenior Indebtedness; and
(ej) the Company delivers has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the defeasance and discharge Defeasance or Covenant Defeasance with respect to Debentures of the Notes as contemplated by this Article Eight such series have been complied withwith and an Opinion of Counsel to the effect that either (i) as a result of such deposit and the related exercise of the Company's option under this Article, registration is not required under the Investment Company Act of 1940, as amended, by the Company, the trust funds representing such deposit or the Trustee or (ii) all necessary registrations under said Act have been effected. Any deposits with the Trustee referred to in Section 3.06(a)(i) shall be irrevocable and shall be made under the terms of an escrow/trust agreement in form and substance satisfactory to the Trustee. If any Outstanding Debentures of such series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory sinking fund requirement, the applicable escrow trust agreement shall provide therefor and the Company shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company. Upon Defeasance with respect to all the Debentures of any series, the terms and conditions of the Debentures of such series, including the terms and conditions with respect thereto set forth in this Indenture, shall no longer be binding upon, or applicable to, the Company; PROVIDED, that the Company shall not be discharged from any payment obligations in respect of Debentures of such series that are deemed not to be Outstanding under clause (iii) of the definition thereof if such obligations continue to be valid obligations of the Company under applicable law.
Appears in 1 contract
Samples: Indenture (Lodgian Inc)
Conditions to Defeasance. The Company may In order to exercise its either legal defeasance option or its covenant defeasance option only if:
(a) The Company shall defeasance: the Issuers or the Parent Guarantor must irrevocably have deposited deposit or caused cause to be deposited as trust funds in trust with the Trustee (or another trustee satisfying such other party as directed by the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust Trustee), for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofthereof (in the case of the Dollar Notes), and cash in euro, European Government Obligations, or a combination thereof (in the case of the Euro Notes), in such amounts as will be sufficient, in the opinion of a nationally an internationally recognized law firm of independent public accountants, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay the principal of (and of, premium, if any) , and accrued and unpaid interest and any Additional Amounts, if any, on the outstanding Notes on the Stated Maturity Date or on the applicable Redemption Date, as the case may be, and the Issuers or the Parent Guarantor must (i) specify whether the Notes are being defeased to maturity or redemption date, to a particular Redemption Date; and (ii) if applicable) of such principal (and premium, if any) or installment of interest; provided that have delivered to the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a an irrevocable notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(b) of such principal, premium, if any, or interest; in the case of the legal defeasance optionan election under Section 8.02, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (iA) the Company has received from, or there has been published by, the U.S. Internal Revenue Service has either published a revenue ruling or issued to the Issuers a private letter ruling, or (iiB) since the date of this Indenture Issue Date, there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel opinion shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such legal defeasance and will be subject to U.S. Federal 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 the covenant defeasance optionan election under Section 8.03, the Company Issuers or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. Federal 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 ; no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or, insofar as bankruptcy or insolvency events described in clauses (ix) and (x) of Section 6.01(a) are concerned, at any time during the period ending on the 123rd day after the date of such deposit; and
such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in this Indenture with respect to any of the Issuers’ securities; such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default (eother than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) under, this Indenture or any material agreement or instrument to which the Parent Guarantor or any Restricted Subsidiary is a party or by which the Parent Guarantor or any Restricted Subsidiary is bound; such legal defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the U.S. Investment Company delivers Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder; the Issuers or the Parent Guarantor shall have delivered to the Trustee an OfficersOpinion of Counsel in the country of each Issuer’s or the Parent Guarantor’s incorporation to the effect that after the 123rd day following the deposit, the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and an Opinion of Counsel reasonably acceptable to the Trustee that the Trustee shall have a perfected security interest in such trust funds for the ratable benefit of the Holders; the Issuers or the Parent Guarantor shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuers or the Parent Guarantor with the intent of preferring the Holders over the other creditors of the Issuers or the Parent Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Issuers or the Parent Guarantor or others, or removing assets beyond the reach of the relevant creditors or increasing debts of the Issuers or the Parent Guarantor to the detriment of the relevant creditors; no event or condition shall exist that would prevent the Issuers from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 123rd day after the date of such deposit; and the Issuers or the Parent Guarantor shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the legal defeasance and discharge of or the Notes covenant defeasance, as contemplated by this Article Eight the case may be, have been complied with. If the funds deposited with the Trustee to effect covenant defeasance are insufficient to pay the principal of, premium, if any, and interest on the Notes when due because of any acceleration occurring after an Event of Default, then the Issuers and the Guarantors shall remain liable for such payments.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Conditions to Defeasance. (a) The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(ai) The the Company shall irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (money in an amount sufficient, or another trustee satisfying U.S. Government Obligations the requirements principal of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securitiesand interest on which will be sufficient, or a combination thereofthereof sufficient, to pay the principal of and interest on the Notes when due at maturity or redemption, as the case may be, including interest thereon to maturity or such Redemption Date;
(ii) the Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, sufficient to pay principal and discharge interest when due on all the Notes to maturity or redemption, as the case may be;
(iii) 123 days pass after the deposit is made and which shall be applied by during the Trustee (or other qualifying trustee) to pay the principal of (and premium, if any123-day period no Default specified in Sections 7.01(h) and interest on the outstanding Notes on the Maturity Date (or redemption date, if applicablei) of such principal (and premium, if any) or installment of interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, Company occurs which is continuing at the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all end of the outstanding Notes at a future date in accordance with Article Threeperiod;
(biv) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940;
(v) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) 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 outstanding Notes Holders will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such 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 defeasance had not occurred;
(cvi) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes Holders 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(evii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes as contemplated by this Article Eight 9 have been complied with.
(b) Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Notes at a future date in accordance with Article 3.
Appears in 1 contract
Samples: Indenture (Cincinnati Bell Inc)
Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option only iffollowing shall be the conditions to application of Section 1302 to the Outstanding Securities of such series:
(a) The the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 609 who shall agree to comply with the provisions of this Article Eight Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders holders of the Notes, cash in U.S. dollars, non-callable Government such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm acceptable to the Company expressed in a written certification thereof delivered to the Trustee, to pay and discharge discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and each installment of principal of (and premium, if any) and interest on the outstanding Notes Outstanding Securities of such series on any Redemption Date, if the Company has irrevocably elected to cause the Outstanding Securities of such series subject to redemption to be redeemed on a specific Redemption Date by giving notice to the Trustee of such election at the time it exercises its option pursuant to Section 1302, or on the Stated Maturity Date (or redemption date, if applicable) of such principal (and premium, if any) or installment of interest; provided that principal or interest and (ii) any mandatory sinking fund payments or analogous payments applicable to the Trustee shall have been irrevocably instructed to apply such money or the proceeds Outstanding Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities. For this purpose, "U.S. Government Obligations" means securities that are (x) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (y) obligations of a Person Controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities to said payments Act of 1933, as amended) as custodian with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the Notes. Before such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all account of the outstanding Notes at a future date holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in accordance with Article Three;
(b) in the case respect of the legal defeasance option, U.S. Government Obligation or the Company shall have delivered to the Trustee an Opinion specific payment of Counsel stating that (i) the Company has received from, principal of 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 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 outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such defeasance and will be subject to U.S. Federal income tax interest on the same amounts, in the same manner and at the same times as would have been the case if U.S. Government Obligation evidenced by such defeasance had not occurred;
(c) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(e) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes as contemplated by this Article Eight have been complied withdepository receipt.
Appears in 1 contract
Conditions to Defeasance. (a) The Company Issuers may exercise its their legal defeasance option or its their covenant defeasance option only if:
(ai) The Company shall the Issuer irrevocably have deposited or caused to be deposited deposits in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article Eight applicable to it) as trust funds in trust for the benefit of the Holders of the Notes, cash in U.S. dollarsDollars, non-callable U.S. Government Securities, 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 and discharge and which shall be applied by the Trustee (or other qualifying trustee) thereof sufficient to pay the principal of and premium (and premium, if any) and interest on the outstanding Notes when due at maturity or redemption, as the case may be;
(ii) with respect to U.S. Government Obligations or a combination of money and U.S. Government Obligations, the Issuer delivers to the Trustee a certificate from a nationally recognized firm of independent accountants, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm expressing their opinion that the payments of principal and interest when due and without reinvestment on the Maturity Date (or redemption datedeposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, if applicable) of such principal (and premium, if any) , and interest on the Notes to redemption or installment of interestmaturity, as the case may be; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee shall have been irrevocably instructed equal to apply such money the Applicable Premium calculated as of the earlier of the date on which arrangements referred to in the succeeding sentence are entered into and the date of the notice of redemption, with any deficit as of the date of the redemption only required to be deposited with the Trustee on or prior to the proceeds date of such Government Securities to said payments the redemption;
(iii) no Default specified in Section 6.01(f) or (g) with respect to the Notes. Before Issuer shall have occurred or is continuing on the date of such a deposit, the Company may give the Trustee, in accordance with Section 3.01 hereof, a notice of its election to redeem all of the outstanding Notes at a future date in accordance with Article Three;
(biv) the deposit does not constitute a default under any other material agreement or instrument binding on the Issuer;
(v) in the case of the legal defeasance option, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel stating that (i1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii2) since the date of this Indenture there has been a change in the applicable U.S. Federal federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the beneficial owners holders of the outstanding Notes will not recognize income, gain or loss for U.S. Federal federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal federal income tax on the same amountsamount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred. Notwithstanding the foregoing, the Opinion of Counsel required by the immediately preceding sentence with respect to a legal defeasance need not be delivered if all of the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer;
(vi) such exercise does not impair the right of any holder of the Notes to receive payment of principal of, premium, if any, and interest on such holder’s Notes on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such holder’s Notes;
(vii) in the case of the covenant defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(c) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and 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;
(d) No Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit; and
(eviii) the Company Issuer delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article Eight VIII have been complied with.
(b) Before or after a deposit, the Issuers may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article III.
Appears in 1 contract
Samples: Indenture (Mallinckrodt PLC)
