Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes: (a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, cash in U.S. Legal Tender, U.S. Government Securities, or a combination thereof (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium and interest on, the outstanding Notes on each date on which such principal, and any premium and interest is due and payable or on any redemption date established pursuant to this Indenture; (b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming that the Company has received from or there has been published by, the Internal Revenue Service a ruling, or since the date of this Indenture, there has been a change in the applicable 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (c) in the case of Covenant Defeasance, 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result of borrowing funds in connection with such defeasance or granting of Liens in connection therewith); (e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, other than this Indenture, or instrument to which the Company is a party or by which the Company is bound; (f) 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 defeating, hindering, delaying or defrauding creditors of the Company or others; and (g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be.
Appears in 5 contracts
Samples: Indenture (Range Resources Corp), Indenture (Range Resources Corp), Indenture (Range Resources Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 Section 9.03 to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderlegal tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts asas shall be sufficient (without consideration of any reinvestment of interest), in as evidenced by an Officer’s Certificate of the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsIssuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenture;the Redemption Date of the principal or installment of principal of or interest on the Notes,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this IndentureIssue Date, 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 such outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners Holders of the such 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, other than this Indenture, or instrument to which the Company is a party or by which the Company is bound;
(f5) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders of such Notes over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g6) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officer’s Certificate, clauses (1) through (4) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) of this paragraph have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the obligations of the Issuer and the obligations of the Guarantors under this Indenture shall be revived and no such defeasance shall be deemed to have occurred.
Appears in 5 contracts
Samples: Indenture (Match Group, Inc.), Indenture (Match Group, Inc.), Indenture (Iac/Interactivecorp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 10.02(b) or 8.03 10.02(c) hereof to the outstanding Notes:
(ai) the Company The Issuer must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenture;the Redemption Date of the principal or installment of principal of or interest on the Notes,
(bii) in In the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that the Company that:
(1) The Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or since or
(2) Since the date of this Indenture, there has been a change in the applicable U.S. United States federal income tax law, in either case to the effect that, and based thereon such this Opinion of Counsel shall confirm that, the Beneficial Owners of the outstanding Notes Holders will not recognize income, gain or loss for U.S. United States federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. United States 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;,
(ciii) in In the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners of the outstanding Notes Holders will not recognize income, gain or loss for U.S. United States federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such the Covenant Defeasance had not occurred;,
(div) no Default or Event of No Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(ev) such The Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a Default under this Indenture or a default under any other material agreement, other than this Indenture, agreement or instrument to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is bound;bound (other than any such Default or default resulting solely from the borrowing of funds to be applied to such deposit),
(fvi) the Company The Issuer shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(gvii) the Company The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officers’ Certificate, clauses (i) through (vi) and, in the case of the Opinion of Counsel, clauses (ii) and/or (iii) and (v) of this Section 10.03 have been complied with.
Appears in 5 contracts
Samples: Indenture (Us Concrete Inc), Indenture (Bode Concrete LLC), Indenture (Bode Concrete LLC)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or Section 8.03 to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderlegal tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, will as shall be sufficient, sufficient (without consideration of any reinvestment of interest) in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenture;the Redemption Date of the principal or installment of principal of or interest on the Notes,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(A) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(B) since the date of this Indenturehereof, 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 shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the Legal 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 Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners Holders of the outstanding Notes will shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute (a) a Default under this Indenture or (b) a default under any other material agreement, other than this Indenture, agreement or instrument to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is bound;bound (other than any such Default or default resulting solely from the borrowing of funds to be applied to such deposit),
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders of Notes over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officer’s Certificate, clauses (1) through (6) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) and (5) of this paragraph have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes, then the obligations of the Issuer and the obligations of Guarantors under this Indenture shall be revived and no such defeasance shall be deemed to have occurred.
Appears in 4 contracts
Samples: Fourth Supplemental Indenture (QVC Inc), Third Supplemental Indenture (QVC Inc), Second Supplemental Indenture (QVC Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 9.03 to the outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, cash in U.S. Legal TenderUnited States dollars, U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm, to pay and discharge the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the Stated Maturity (or the applicable redemption date), if at or prior to electing either Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on which such principalredemption date, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to Stated Maturity or on any to a particular redemption date established pursuant to this Indenturedate);
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel confirming independent counsel in the United States having expertise in matters of United States federal income tax law that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel to independent counsel in the effect United States having expertise in matters of United States federal income tax law confirming 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as an Event of Default or Default resulting from the incurrence of Indebtedness or Liens securing such Indebtedness, all or a result portion of borrowing funds in connection with the proceeds of which will be applied to such defeasance or granting of Liens in connection therewithdeposit);
(e) such Legal Defeasance or Covenant Defeasance deposit shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Company, any Subsidiary Guarantor or any Restricted Subsidiary is a party or by which it is bound or if such breach or default would occur, which is not waived as of, or for all purposes, on or after, the Company is bounddate of such deposit;
(f) 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 or any Guarantee over the other creditors of the Company or any Subsidiary Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company Company, any Subsidiary Guarantor or others; and
(g) the Company shall will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Appears in 4 contracts
Samples: Fifth Supplemental Indenture (SM Energy Co), Fourth Supplemental Indenture (SM Energy Co), Third Supplemental Indenture (SM Energy Co)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 8.03 or 8.03 to the outstanding NotesSection 8.04:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderdollars, U.S. non-callable Government Securities, or a combination thereof (“Funds of cash in Trust”)U.S. dollars and non-callable Government Securities, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized investment bank, nationally recognized appraisal film, or nationally recognized firm of independent public accountants, accountants to pay the principal of, or interest and any premium and interest onpremium, if any, on the outstanding Notes on each the stated date for payment thereof or on which such principalthe applicable redemption date, as the case may be, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to such stated date for payment or on any to a particular redemption date established pursuant to this Indenturedate;
(b) in the case of Legal Defeasancean election under Section 8.03, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel confirming that that:
(1) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, or ; or
(2) since the date of this IndentureIssue Date, 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 will 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 8.04, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel to the effect confirming 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 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 shall have has occurred and be is continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of Default resulting from the borrowing of funds in connection with to be applied to such defeasance deposit or granting the grant of Liens in connection therewithsecuring such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall and the related deposit will not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this the Indenture, 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 shall have delivered must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others; and;
(g) the Company shall have delivered must deliver to the Trustee an Officers’ Certificate and Certificate, stating that all conditions precedent set forth in clauses (a) through (f) have been complied with; and
(h) the Company must deliver to the Trustee an Opinion of Counsel each Counsel, stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasanceset forth in clauses (b), as the case may be(c) and (e) have been complied with.
Appears in 4 contracts
Samples: Indenture (PDC Energy, Inc.), Indenture (PDC Energy, Inc.), Indenture (SYNERGY RESOURCES Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.2 or 8.03 8.3 hereof to the outstanding Notes:
(ai) the Company must Issuers shall irrevocably deposit have deposited or cause caused to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tenderdollars, U.S. non-callable Government Securities, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the stated maturity or on which such principalthe applicable redemption date, as the case may be, and any premium and interest is due and payable the Issuers shall specify whether the Notes are being defeased to maturity or on any to a particular redemption date established pursuant to this Indenturedate;
(bii) in the case of Legal Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel confirming that (A) the Company has Issuers have received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this IndentureIssue 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 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 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;
(ciii) in the case of Covenant Defeasance, the Company Issuers 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 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;
(div) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of Default resulting from the borrowing of funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);
(ev) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Issuers or any of the Subsidiaries is a party or by which the Company Issuers or any of the Subsidiaries is bound;
(fvi) the Company Issuers shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding creditors of the Company Issuers or others; and
(gvii) the Company Issuers shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating stating, subject to certain factual assumptions and bankruptcy and insolvency exceptions, that the Company has complied with all conditions precedent provided for in this Indenture relating to the Legal Defeasance or the Covenant Defeasance, as the case may beDefeasance have been complied with.
Appears in 4 contracts
Samples: Indenture (Majestic Investor Capital Corp), Indenture (Majestic Star Casino LLC), Indenture (Majestic Investor Capital Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 9.03 hereof to the outstanding NotesNotes and the Guarantees:
(a1) the Company must irrevocably deposit or cause to be deposited with the TrusteeTrustee (or other qualifying trustee), in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, dollars or U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountantsaccountants selected by the Company, expressed in a written certification to the Trustee, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date on which such principal, and any premium and interest is the scheduled due and payable dates or on any redemption date established pursuant the applicable Redemption Date, as the case may be, provided that the Trustee shall have received an irrevocable written order from the Company instructing the Trustee to this Indentureapply such U.S. dollars or the proceeds of such U.S. Government Obligations to said payments with respect to such Notes;
(b2) in the case of Legal Defeasancean election under Section 9.02 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners of the outstanding Notes Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit, Legal Defeasance and discharge and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c3) in the case of Covenant Defeasancean election under Section 9.03 hereof, 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 income tax purposes as a result of such deposit, Covenant Defeasance and discharge 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to on the Notes date of such deposit or insofar as Sections 6.01(g) and 6.01(h) hereof are concerned, at any time in the period ending on the 91st day after the date of such deposit (other than as a result Default or Event of borrowing funds in connection Default resulting from the incurrence of Indebtedness all or a portion of the proceeds of which will be used to defease the Notes concurrently with such defeasance or granting of Liens in connection therewithincurrence);
(e5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, of or constitute a default under this Indenture or any other material agreement, other than this Indenture, 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;
(f6) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(g7) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent (other than, in the case of such Opinion of Counsel, paragraph (6) above as to which such counsel need not express an opinion) provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with;
(8) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that after the 91st day following the deposit and assuming that no Holder is an “insider” with respect to the Company, as that term is defined in Xxxxxxx 000 xx xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code (the case may be.“Bankruptcy Code”), the cash or securities deposited in trust will not be subject to avoidance and repayment under Sections 547 and 550 of the Bankruptcy Code;
Appears in 3 contracts
Samples: Indenture (CNH Industrial Capital LLC), Indenture (CNH Industrial Capital LLC), Indenture (New Holland Credit Company, LLC)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 11.02 or 8.03 Section 11.03 to the outstanding Notes:
(a1) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesNotes issued thereunder, cash in U.S. Legal Tenderdollars, U.S. non-callable Government Securities, or a combination thereof (“Funds of cash in Trust”)U.S. dollars, and non-callable Government Securities, in such amounts as, in the aggregate, as will be sufficientsufficient (without consideration of any reinvestment of interest), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Company, to pay the principal of, interest and any premium and interest onpremium, if any, on the outstanding Notes on each date on which such principalthrough the stated maturity or through the applicable Redemption Date, as the case may be, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to maturity or on any redemption date established pursuant to this Indenturea particular Redemption Date;
(b2) in the case of Legal Defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Company has received from from, or there has been published by, the Internal Revenue Service Service, a ruling, ruling or (b) since the date of this IndentureIssue Date, 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 will confirm that, the Beneficial Owners Holders and beneficial owners of the respective outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax (including, for greater certainty, withholding 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;
(c3) in the case of Covenant Defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners Holders and beneficial owners of the respective 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 (including, for greater certainty, withholding 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;
(d4) no Default or Event of Default shall have has occurred and be is continuing with respect to the Notes on the date of such deposit (other than or insofar as a result Events of borrowing funds Default resulting from insolvency events are concerned, at any time in connection with such defeasance or granting the period ending on the 91st day after the date of Liens in connection therewith)deposit;
(e5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, 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;
(f6) the Company shall have delivered must deliver 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 any of the other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g7) the Company shall have delivered must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as Defeasance set forth in clauses (1) through (6) above (in the case may beof such Officer’s Certificate) or clauses (2) and/or (3) and (5) above (in the case of such Opinion of Counsel) have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the Company’s obligations and the obligations of the Guarantors under this Indenture will be revived and no such defeasance will be deemed to have occurred.
Appears in 3 contracts
Samples: Third Supplemental Indenture (L Brands, Inc.), Second Supplemental Indenture (L Brands, Inc.), First Supplemental Indenture (L Brands, Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions (a) In order to the application of exercise either Section 8.02 Legal Defeasance or 8.03 to the outstanding NotesCovenant Defeasance:
(a1) the Company Issuers must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tenderdollars, U.S. non-callable Government Securities, or a combination thereof (“Funds of cash in Trust”)U.S. dollars and non-callable Government Securities, in such amounts as, as will be sufficient (which in the aggregate, case of a deposit in whole or in part of non-callable Government Securities will be sufficient, in evidenced by the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, accountants as to the sufficiency of such deposit) to pay the principal of, and any premium of and interest onand premium, if any, on the outstanding Notes on each the date of fixed maturity or on which such principalthe applicable redemption date, as the case may be, and any premium and interest is due and payable the Issuers must specify whether the Notes are being defeased to the date of fixed maturity or on any to a particular redemption date established pursuant to this Indenturedate;
(b2) in the case of Legal Defeasancean election under Section 7.02, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that that:
(a) the Company has Issuers have received from from, or there has been published by, the Internal Revenue Service a ruling, or ; or
(b) since the date of this IndentureIssue Date, 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of Officers of the General Partner;
(c3) in the case of Covenant Defeasancean election under Section 7.03, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect Trustee confirming 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 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; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of Officers of the General Partner;
(d4) no Default or Event of Default shall have has occurred and be is continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of Default resulting from the incurrence of Indebtedness or other borrowing funds in connection with such defeasance of funds, or granting the grant of Liens in connection therewithsecuring such Indebtedness or other borrowing, all or a portion of which are to be applied to such deposit);
(e5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, 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;
(f6) the Company Issuers shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding creditors of the Company Issuers or others; and
(g7) the Company Issuers shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of Officers of the case may beGeneral Partner.
Appears in 3 contracts
Samples: Indenture (USA Compression Partners, LP), Indenture (USA Compression Partners, LP), Indenture (USA Compression Partners, LP)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or Section 8.03 hereof to the outstanding Notes:
(a) the Company must Issuer shall irrevocably deposit have deposited or cause caused to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tenderdollars, U.S. non-callable Government Securities, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the Maturity Date or on which such principalthe applicable redemption date, as the case may be, and any premium and interest is due and payable the Issuer shall specify whether the Notes are being defeased to the Maturity Date or on any to a particular redemption date established pursuant to this Indenturedate;
(b) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel confirming that (A) the Company Issuer has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this IndentureIssue 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 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 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 Covenant Defeasance, the Company Issuer 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of Default resulting from the borrowing of funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);
(e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Issuer or any of the Subsidiaries is a party or by which the Company Issuer or any of the Subsidiaries is bound;
(f) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company 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 Company Issuer or others; and
(g) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating stating, subject to certain factual assumptions and bankruptcy and insolvency exceptions, that the Company has complied with all conditions precedent provided for in this Indenture relating to the Legal Defeasance or the Covenant Defeasance, as the case may beDefeasance have been complied with.
Appears in 3 contracts
Samples: Indenture Agreement (Centrus Energy Corp), Indenture Agreement (United States Enrichment Corp), Indenture Agreement (Usec Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 the Legal Defeasance option as the Covenant Defeasance option hereof to the outstanding Notes: In order to exercise either Legal Defeasance or Covenant Defeasance:
(a1) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tender, U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the Stated Maturity or on which such principalthe applicable Redemption Date, as the case may be, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to maturity or on any redemption date established pursuant to this Indenturea particular Redemption Date;
(b2) in the case of an election of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel (subject to customary exceptions and exclusions) reasonably acceptable to the Trustee confirming that (a) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (b) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners Holders 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 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 deposit and Legal Defeasance had not occurred;
(c3) in the case of an election of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel (subject to customary exceptions and exclusions) reasonably acceptable to the effect Trustee confirming 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 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes either: (a) on the date of such deposit (other than a Default resulting from the borrowing of funds to be applied to such deposit), or (b) insofar as a result Events of borrowing funds Default from bankruptcy or insolvency events pertaining to the Company are concerned, at any time in connection with the period ending on the 91st day after the date of deposit; provided that such defeasance Legal Defeasance or granting Covenant Defeasance, as the case may be, shall be deemed to have occurred on the date of Liens in connection therewith)such deposit, subject to such Event of Default from bankruptcy or insolvency pertaining to the Company within such 91-day period;
(e5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, 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;
(f6) the Company shall have delivered must deliver to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g7) the Company shall have delivered must deliver to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as Defeasance have been complied with (which Opinion of Counsel may expressly assume that the case may beonly material agreements or instruments referred to in clause (5) of this Section 8.03 are those listed in an Officer’s Certificate).
Appears in 3 contracts
Samples: Indenture (Davita Inc.), Indenture (Davita Inc.), Indenture (Davita Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, Notes cash in U.S. Legal TenderUnited States dollars, U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm, to pay and discharge the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the Stated Maturity (or the applicable redemption date), if at or prior to electing either Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on which such principalredemption date, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to Stated Maturity or on any to a particular redemption date established pursuant to this Indenturedate);
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) 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 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 Legal Defeasance 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 Legal Defeasance deposit and defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the effect Trustee 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 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 Defeasance deposit and defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as an Event of Default or Default resulting from the incurrence of Indebtedness or Liens securing such Indebtedness, all or a result portion of borrowing funds in connection with the proceeds of which will be applied to such defeasance or granting of Liens in connection therewithdeposit);
(e) such Legal Defeasance or Covenant Defeasance deposit shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, Indenture or instrument the Security Documents) to which the Company Company, any Subsidiary Guarantor or any Restricted Subsidiary is a party or by which it is bound or if such breach or default would occur, which is not waived as of, or for all purposes, on or after, the Company is bounddate of such deposit;
(f) 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 or any Guarantee over the other creditors of the Company or any Subsidiary Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company Company, any Subsidiary Guarantor or others; and
(g) the Company shall will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Appears in 3 contracts
Samples: Supplemental Indenture (Goodrich Petroleum Corp), Indenture (Goodrich Petroleum Corp), Indenture (Goodrich Petroleum Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, Notes cash in U.S. Legal TenderUnited States dollars, U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm, to pay and discharge the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the Stated Maturity (or the applicable redemption date), if at or prior to electing either Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on which such principalredemption date, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to Stated Maturity or on any to a particular redemption date established pursuant to this Indenturedate);
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) 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 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 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 Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the effect Trustee 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than an Event of Default or Default resulting from the incurrence of Indebtedness or Liens securing such Indebtedness, all or a portion of the proceeds of which will be applied to such deposit) or insofar as a result clause (8) or (9) of borrowing funds in connection with such defeasance or granting Section 6.01 is concerned, at any time during the period ending on the 91st day after the date of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance deposit shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Company, any Guarantor or any Restricted Subsidiary is a party or by which it is bound or if such breach or default would occur, which is not waived as of, or for all purposes, on or after, the Company is bounddate of such deposit;
(f) such deposit shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(g) the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee to the effect that (assuming no Holder or Beneficial Owner of the Notes would be considered an insider of the Company or any Guarantor under any applicable bankruptcy or insolvency law and assuming no intervening bankruptcy or insolvency of the Company or any Guarantor between the date of deposit and the 91st day following the deposit) 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;
(h) 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 or any Guarantee over the other creditors of the Company or any Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company Company, any Guarantor or others; and
(gi) the Company shall will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Appears in 3 contracts
Samples: Indenture (Continental Resources Inc), Indenture (Continental Resources Inc), Indenture (Continental Resources Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 Section 9.03 to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the relevant series of Notes, cash in U.S. Legal Tenderlegal tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, will as shall be sufficient, sufficient (without consideration of any reinvestment of interest) in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes of such series on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenture;the Redemption Date of the principal or installment of principal of or interest on the Notes of such series,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this Indenturehereof, 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 such series of outstanding Notes will shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the Legal 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 Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners Holders of the such series of outstanding Notes will shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute (a) a Default under this Indenture or (b) a default under any other material agreement, other than this Indenture, agreement or instrument to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is bound;bound (other than any such Default or default resulting solely from the borrowing of funds to be applied to such deposit),
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders of such series of Notes over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officer’s Certificate, clauses (1) through (6) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) and (5) of this paragraph have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes of the relevant series when due, then the obligations of the Issuer and the obligations of Guarantors under this Indenture shall be revived and no such defeasance shall be deemed to have occurred.
Appears in 3 contracts
Samples: Indenture (ER Marks, Inc.), Indenture (ER Marks, Inc.), Indenture (QVC Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 8.03 or 8.03 to the outstanding NotesSection 8.04:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderdollars, U.S. non-callable Government Securities, or a combination thereof (“Funds of cash in Trust”)U.S. dollars and non-callable Government Securities, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized investment bank, nationally recognized appraisal film, or nationally recognized firm of independent public accountants, accountants to pay the principal of, or interest and any premium and interest onpremium, if any, on the outstanding Notes on each the stated date for payment thereof or on which such principalthe applicable redemption date, as the case may be, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to such stated date for payment or on any to a particular redemption date established pursuant to this Indenturedate;
(b) in the case of Legal Defeasancean election under Section 8.03, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel confirming that stating that:
(1) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, or ; or
(2) since the date of this IndentureIssue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect stating that, and based thereon such Opinion of Counsel shall confirm will state 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 8.04, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel to the effect confirming 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 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 shall have has occurred and be is continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of Default resulting from the borrowing of funds in connection with to be applied to such defeasance deposit or granting the grant of Liens in connection therewithsecuring such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall and the related deposit will not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, 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 shall have delivered must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others; and;
(g) the Company shall have delivered must deliver to the Trustee an Officers’ Certificate and Certificate, stating that all conditions precedent set forth in clauses (a) through (f) have been complied with; and
(h) the Company must deliver to the Trustee an Opinion of Counsel each Counsel, stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasanceset forth in clauses (b), as the case may be(c) and (e) have been complied with.
Appears in 3 contracts
Samples: Indenture, Indenture (Rex Energy Corp), Indenture (Rex Energy Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 9.03 to the outstanding NotesNotes and the Guarantees: In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, cash in U.S. Legal Tender, U.S. Government Securities, Trustee (or a combination thereof (“Funds in Trust”other qualifying trustee), in trust for such amounts aspurpose, of money and/or non-callable U.S. Government Obligation which through the payment of principal and interest in accordance with their terms will provide money, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, an amount sufficient to pay the principal of, and any premium premium, if any, and interest onon the Notes, on the outstanding Notes on each date on which such principal, and any premium and interest is scheduled due and payable dates therefor or on any a selected date of redemption date established pursuant to in accordance with the terms of this Indenture;
(b) in the case of Legal Defeasancean election under Section 9.02, the Company shall have delivered to the Trustee an Opinion of Counsel confirming stating that (i) the Company has have received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (ii) since the date of this Indenture, there has been a change in the any 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 or Persons in their positions 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 Covenant Defeasancean election under Section 9.03, 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 Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have has occurred and be is continuing with respect to the Notes on the date of such deposit (other than or insofar as a result Events of borrowing funds Default from bankruptcy, insolvency, or reorganization events are concerned, at any time in connection with such defeasance or granting the period ending on the 91st day after the date of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, of or constitute a Default under this Indenture or a default under any other material agreement, other than this Indenture, 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 shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or its Subsidiaries or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(g) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with;
(h) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that assuming no intervening event of the type described in Section 6.01(f) or (g) between the date of deposit and the 91st day following the deposit or, if longer, ending on the day following the expiration of the longest preference period under any Bankruptcy Law and further assuming that no Holder is an insider of the Company, after the 91st day following the deposit or, if longer, ending on the day following the expiration of the longest preference period under any Bankruptcy Law, the trust funds will not be subject to the effect of any applicable Bankruptcy Law; and
(i) the Company shall have delivered to the Trustee an Opinion of Counsel stating that, as a result of such Legal Defeasance or Covenant Defeasance, neither the trust nor the Trustee will be required to register as an investment company under the case may beInvestment Company Act of 1940, as amended.
Appears in 2 contracts
Samples: Indenture (Affinity Group Holding, Inc.), Indenture (Affinity Group Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding NotesNotes and the Subsidiary Guarantees: In order to exercise either Legal Defeasance or Covenant Defeasance, as applicable:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderdollars, U.S. non-callable Government Securities, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal ofof and premium, if any, and any premium and interest on, on the outstanding Notes on each date the Stated Maturity or on which such principalthe applicable Redemption Date, as the case may be, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to maturity or on any redemption date established pursuant to this Indenturea particular Redemption Date;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States who shall be reasonably satisfactory to the Trustee confirming that (1) the Company has received from from, or there has been published by, the U.S. Internal Revenue Service a ruling, ruling or (2) since the date of this IndentureClosing Date, 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 purposes, as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States who shall be reasonably satisfactory to the effect Trustee confirming 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of Default resulting from the borrowing of funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company or any of the Guarantors is a party or by which the Company or any of the Guarantors is bound;
(f) 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 Notes over the other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Appears in 2 contracts
Samples: Indenture (Playa Hotels & Resorts N.V.), Indenture (Playa Hotels & Resorts B.V.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, Notes cash in U.S. Legal TenderUnited States dollars, U.S. Government SecuritiesObligations, or a combination thereof (““ Funds in TrustTrust ”), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm, to pay and discharge the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the Stated Maturity (or the applicable redemption date), if at or prior to electing either Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on which such principalredemption date, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to Stated Maturity or on any to a particular redemption date established pursuant to this Indenturedate);
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) 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 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 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 Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the effect Trustee 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than an Event of Default or Default resulting from the incurrence of Indebtedness or Liens securing such Indebtedness, all or a portion of the proceeds of which will be applied to such deposit) or insofar as a result clause (8) or (9) of borrowing funds in connection with such defeasance or granting Section 6.01 is concerned, at any time during the period ending on the 91st day after the date of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance deposit shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Company, any Guarantor or any Restricted Subsidiary is a party or by which it is bound or if such breach or default would occur, which is not waived as of, or for all purposes, on or after, the Company is bounddate of such deposit;
(f) such deposit shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(g) the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee to the effect that (assuming no Holder or Beneficial Owner of the Notes would be considered an insider of the Company or any Guarantor under any applicable bankruptcy or insolvency law and assuming no intervening bankruptcy or insolvency of the Company or any Guarantor between the date of deposit and the 91st day following the deposit) 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;
(h) 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 or any Guarantee over the other creditors of the Company or any Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company Company, any Guarantor or others; and
(gi) the Company shall will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Appears in 2 contracts
Samples: Indenture (Continental Resources, Inc), Indenture (Continental Resources, Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a1) the Company must Issuers shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuers, to pay the principal of, and any premium of and interest onand premium, if any, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indentureof the Notes;
(b2) in the case of Legal Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company has Issuers have received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) 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 this Opinion of Counsel shall confirm that, that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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;
(c3) in the case of Covenant Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds to be applied to such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in connection with such defeasance or each case, the granting of Liens on the funds deposited in connection therewith);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Parent or any of its Subsidiaries is a party or by which the Company Parent or any of its Subsidiaries is boundbound (other than any such Default or default relating to any Indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such Indebtedness, and the granting of Liens on the funds deposited in connection therewith);
(f6) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by them with the Company intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company Issuers or others; and
(g7) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to in, in the Legal Defeasance or case of the Covenant DefeasanceOfficer’s Certificate, clauses (1) through (6), as applicable, and, in the case may beof the Opinion of Counsel, clauses (2), if applicable, and/or (3) and (5) of this Section 8.03 have been complied with.
Appears in 2 contracts
Samples: Indenture (Aviv Healthcare Properties L.P.), Indenture (Bellingham II Associates, L.L.C.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application exercise either Legal Defeasance under Section 8.02(b) or Covenant Defeasance under Section 8.02(c) with respect to Securities of either Section 8.02 or 8.03 to the outstanding Notesany Series:
(a1) the Company must irrevocably deposit or cause to be deposited with the TrusteeTrustee for such Securities, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notessuch Securities and any coupons appertaining thereto, cash in U.S. Legal Tender, money or U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Company, to pay the principal ofof (and premium, if any) and interest, if any, on, and any premium and interest onmandatory sinking fund payments in respect of, the outstanding Notes Securities of such Series and any coupons appertaining thereto on each the stated date for payment thereof or on which such principalthe applicable redemption date, as the case may be, and the Company must specify whether such Securities and any premium and interest is due and payable coupons appertaining thereto are being defeased to such stated date for payment or on any to a particular redemption date established pursuant to this Indenturedate;
(b2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee for such Securities an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that that:
(i) the Company has received from from, or there has been published by, the Internal Revenue Service Service, a ruling, or 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 thatthereon, the Beneficial Owners Holders of the outstanding Notes Securities of such Series and any coupons appertaining thereto will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee for such Securities and any coupons appertaining thereto an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners Holders of the outstanding Notes such Securities and any coupons appertaining thereto 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit shall not result in a breach or violation of, or constitute a default under this Indenture (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under under, any other material agreement, other than this Indenture, 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 boundbound (other than any such default resulting solely from the borrowing of funds to be applied to such deposit and the grant of any Lien on such deposit in favor of the Trustee and/or the Holders);
(f6) the Company shall have delivered to the Trustee for such Securities an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of such Securities and any coupons appertaining thereto over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors any other of the Company or othersits creditors; and
(g7) the Company shall have delivered to the Trustee for such Securities an Officers’ Certificate and an Opinion of Counsel each stating Counsel, stating, in the case of the Officers’ Certificate, clauses (1) through (6) of this Section 8.03, as applicable, have been complied with and stating, in the case of the Opinion of Counsel, that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance in clause (2) or the Covenant Defeasance(3), as the case may beapplicable, and clause (5) of this Section 8.03 have been complied with.
Appears in 2 contracts
Samples: Indenture (Vantage Drilling CO), Indenture (Vantage Drilling CO)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance pursuant to Section 8.02 9.02(b) or 8.03 Covenant Defeasance pursuant to the outstanding Notes:Section 9.02(c):
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. dollars or United States Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes Securities on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any the applicable redemption date established pursuant to this Indenturedate, as the case may be;
(b) in the case of Legal Defeasancean election under Section 9.02(b), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 9.02(c), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the 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 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 shall have occurred and be continuing with respect to the Notes 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 a result Sections 6.01(f) and 6.01(g) are concerned, at any time in the period ending on the 91st day after the date of borrowing funds in connection with such defeasance or granting of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, of or constitute a default Default under this Indenture or any other material agreement, other than this Indenture, agreement or instrument 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 shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(g) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that assuming no intervening bankruptcy or insolvency of the Company between the date of deposit and the 91st day following the deposit and that no Holder is an insider of the Company, as after the case may be91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) above need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (x) have become due and payable, (y) will become due and payable on the Final Maturity Date within one year or (z) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Samples: Indenture (Lin Television Corp), Indenture (WTNH Broadcasting Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenture;the Redemption Date of the principal or installment of principal of or interest on the Notes,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such this 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 and, assuming no subsequent change in applicable law, will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming 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 and, assuming no subsequent change in applicable law, 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default Default under any other material agreement, this Indenture (other than this Indenture, any such Default or instrument default resulting solely from the borrowing of funds to which the Company is a party or by which the Company is bound;be applied to such deposit),
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officers’ Certificate, clauses (1) through (6) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) and (5) of this Section 8.03 have been complied with.
Appears in 2 contracts
Samples: Indenture (Seitel Inc), Indenture (Matrix Geophysical, Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, Notes cash in U.S. Legal TenderUnited States dollars, U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm, to pay and discharge the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the Stated Maturity (or the applicable redemption date), if at or prior to electing either Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on which such principalredemption date, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to Stated Maturity or on any to a particular redemption date established pursuant to this Indenturedate);
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) 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 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 Legal Defeasance 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 Legal Defeasance deposit and defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the effect Trustee 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 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 Defeasance deposit and defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as an Event of Default or Default resulting from the incurrence of Indebtedness or Liens securing such Indebtedness, all or a result portion of borrowing funds in connection with the proceeds of which will be applied to such defeasance or granting of Liens in connection therewithdeposit);
(e) such Legal Defeasance or Covenant Defeasance deposit shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Company, any Subsidiary Guarantor or any Restricted Subsidiary is a party or by which it is bound or if such breach or default would occur, which is not waived as of, or for all purposes, on or after, the Company is bounddate of such deposit;
(f) 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 or any Guarantee over the other creditors of the Company or any Subsidiary Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company Company, any Subsidiary Guarantor or others; and
(g) the Company shall will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Appears in 2 contracts
Samples: Purchase Agreement (Goodrich Petroleum Corp), Indenture (Goodrich Petroleum Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the NotesNotes of, cash in U.S. Legal Tender, U.S. Government Securities, or a combination thereof (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay pay:
(i) the principal of, and any premium and interest on, on the outstanding Notes on each date on which such principal, and any premium and interest is due and payable or on any redemption date established pursuant to this Indenture; and
(ii) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of this Indenture and of the Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming that 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, 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 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 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 Covenant Defeasance, the Company 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit or insofar as Events of Default pursuant to clause (other than as a result 7) or (8) of borrowing funds in connection with such defeasance or granting Section 6.01 are concerned, at any time during the period ending on the 91st day after the date of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, other than this Indenture, or instrument to which the Company is a party or by which the Company is bound;
(f) 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 defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be.
Appears in 2 contracts
Samples: Indenture (Continental Resources, Inc), Indenture (Continental Resources, Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 Section 9.03 to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderlegal tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts asas shall be sufficient (without consideration of any reinvestment of interest), in as evidenced by an Officer’s Certificate of the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsIssuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenture;the Redemption Date of the principal or installment of principal of or interest on the Notes,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this IndentureIssue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon thereon, such Opinion of Counsel shall confirm that, the Beneficial Owners beneficial owners of the such outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners beneficial owners of the such 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, other than this Indenture, or instrument to which the Company is a party or by which the Company is bound;
(f5) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders of such Notes over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g6) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officer’s Certificate, clauses (1) through (4) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) of this paragraph, have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the obligations of the Issuer and any Guarantors under this Indenture shall be revived and no such defeasance shall be deemed to have occurred.
Appears in 2 contracts
Samples: Indenture (News Corp), Indenture (News Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 9.03 hereof to the outstanding NotesNotes and the Note Guarantees:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the TrusteeTrustee (or other qualifying trustee), as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, legal tender or U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without consideration of any reinvestment of interest), in the opinion of a nationally recognized investment bank, appraisal firm or firms of independent public accountantsaccountants selected by the Issuer, to pay the principal of, and any premium of and interest onon the Notes on the scheduled due dates or on the applicable Redemption Date, as the case may be, provided that the Trustee shall have received an irrevocable written order from the Issuer instructing the Trustee to apply such U.S. legal tender or the proceeds of such U.S. Government Obligations to said payments with respect to such Notes, provided, further, that from and after the time of deposit, the outstanding Notes on each date on which such principal, and any premium and interest is due and payable or on any redemption date established money deposited shall not be subject to the rights of the Senior Creditors under the Credit Agreement pursuant to Article 10 of this Indenture;
(b2) in the case of Legal Defeasancean election under Section 9.02 hereof, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (A) the Company Issuer has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners of the outstanding Notes Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit, Legal Defeasance and discharge and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c3) in the case of Covenant Defeasancean election under Section 9.03 hereof, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect Trustee confirming 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, Covenant Defeasance and discharge 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of Default resulting solely from the borrowing of funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);
(e5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, of or constitute a default under this Indenture or any other material agreement, other than this Indenture, agreement or instrument to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is boundbound (other than any such Default or default resulting solely from the borrowing of funds to be applied to such deposit);
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company Issuer with the intent of preferring the Holders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company Issuer or others; and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officers’ Certificate, clauses (1) through (6) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) and (5) of this Section 9.04 have been complied with.
Appears in 2 contracts
Samples: Indenture (American Greetings Corp), Indenture (American Greetings Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a) the Company must Issuers shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment bank selected by the Issuers, to pay the principal of, and any premium of and interest onand premium, if any, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indentureof the Notes;
(b) in the case of Legal Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States of America confirming that that:
(i) the Company has Issuers have received from from, or there has been published by, by the Internal Revenue Service 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 this Opinion of Counsel shall confirm that, 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 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 Covenant Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to the effect Trustee confirming that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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 the Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds to be applied to such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in connection with such defeasance or each case, the granting of Liens on the deposited funds in connection therewith);
(e) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Parent or any of its Subsidiaries is a party or by which Parent or any of its Subsidiaries is bound (other than any such Default or default relating to any Indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such Indebtedness, and the Company is boundgranting of Liens on the deposited funds in connection therewith);
(f) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by them with the Company intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other of their creditors of the Company or others; and
(g) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to in, in the Legal Defeasance or case of the Covenant DefeasanceOfficer’s Certificate, clauses (1) through (6), as applicable, and, in the case may beof the Opinion of Counsel, clauses (2), if applicable, and/or (3) and (5) of this Section 8.03 have been complied with.
Appears in 2 contracts
Samples: Indenture (Ryman Hospitality Properties, Inc.), Indenture (Ryman Hospitality Properties, Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application ability of either Section 8.02 the Issuer and the Guarantors to effect legal defeasance or 8.03 covenant defeasance with respect to the outstanding Notes: In order to exercise either legal defeasance or covenant defeasance with respect to outstanding Notes:
(a1) the Company Issuer must irrevocably deposit have deposited or cause caused to be deposited with the Trustee, Trustee as trust funds in trusttrust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, to the benefit benefits of the Holders of the such Notes, cash : (A) money in U.S. Legal Tender, U.S. Government Securitiesan 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 the due date of any payment, money in an amount or (C) a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, will be sufficienteach case sufficient without reinvestment, 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 to pay and discharge, the entire indebtedness in respect of the principal ofof and premium, if any, and any premium and interest on, the outstanding on such Notes on each date on which such principal, the Stated Maturity thereof or (if the Issuer has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and any premium and interest is due and payable or on any at the expense of the Issuer) the redemption date established pursuant to thereof, as the case may be, in accordance with the terms of this IndentureIndenture and such Notes;
(b2) in the case of Legal Defeasancelegal defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel confirming stating that (A) the Company Issuer has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. United States federal income tax law, in either case (A) or (B) to the effect that, and based thereon such Opinion of Counsel opinion shall confirm that, the Beneficial Owners Holders of the outstanding such Notes will not recognize income, gain or loss for U.S. United States federal income tax purposes as a result of the deposit, defeasance and discharge to be effected with respect to such Legal Defeasance Notes and will be subject to U.S. 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 Legal Defeasance had deposit, defeasance and discharge were not occurredto occur;
(c3) in the case of Covenant Defeasancecovenant defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Beneficial Owners Holders of the such outstanding Notes will not recognize income, gain or loss for U.S. United States federal income tax purposes as a result of the deposit and covenant defeasance to be effected with respect to such Covenant Defeasance Notes and will be subject to U.S. 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;
(d4) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing with respect to at the Notes on the date time of such deposit after giving effect thereto (other than as a result Default or Event of Default resulting from the borrowing of funds in connection with to be applied to such defeasance or granting deposit and the grant of Liens in connection therewithany Lien to secure such borrowing);
(e5) such Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or material instrument (other than this Indenture, or instrument ) to which the Company Issuer is a party or by which the Company Issuer is bound;
(f) 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 defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g6) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating with respect to such legal defeasance or covenant defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) above with respect to a legal defeasance need not to be delivered if all Notes not theretofore delivered to the Legal Defeasance Trustee for cancellation (x) have become due and payable, or (y) will become due and payable at Stated Maturity within one year under arrangements satisfactory to the Covenant DefeasanceTrustee for the giving of notice of redemption by the Trustee in the name, as and at the case may beexpense, of the Issuer.
Appears in 2 contracts
Samples: Indenture (Jack Cooper Holdings Corp.), Indenture (Jack Cooper Logistics, LLC)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, cash in U.S. Legal Tender, money or U.S. Government Securities, or a combination thereof Obligations (“Funds in Trust”), in such amounts as, in for the aggregate, will be sufficient, in the opinion payment of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the Stated Maturity (or the applicable redemption date), if at or prior to electing either Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on which such principalredemption date, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to Stated Maturity or on any to a particular redemption date established pursuant to this Indenturedate;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion one of Counsel more opinions of independent counsel in the United States and Canada reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders and Beneficial Owners of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes or Canadian federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax or Canadian federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion one or more opinions of Counsel independent counsel in the United States and Canada reasonably acceptable to the effect Trustee confirming that the Holders and Beneficial Owners of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes or Canadian federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax or Canadian federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as an Event of Default or Default resulting from the incurrence of Indebtedness or Liens securing such Indebtedness, all or a result portion of borrowing funds in connection with the proceeds of which will be applied to such defeasance or granting of Liens in connection therewithdeposit);
(e) such Legal Defeasance or Covenant Defeasance deposit shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Company, any Subsidiary Guarantor or any Restricted Subsidiary is a party or by which it is bound or if such breach or default would occur, which is not waived as of, or for all purposes, on or after, the Company is bounddate of such deposit;
(f) 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 or any Guarantee over the other creditors of the Company or any Subsidiary Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company Company, any Subsidiary Guarantor or others; and
(g) the Company shall will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Appears in 2 contracts
Samples: Indenture (Ultra Petroleum Corp), Indenture (Ultra Petroleum Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding NotesNotes of any series:
(a1) the Company must Issuers shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuers, to pay the principal of, and any premium of and interest onand premium, the outstanding if any, on such Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indentureof such Notes;
(b2) in the case of Legal Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company has Issuers have received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) 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 this Opinion of Counsel shall confirm that, that the Beneficial Owners Holders and beneficial owners of the outstanding such 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;
(c3) in the case of Covenant Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners Holders and beneficial owners of the outstanding such 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds to be applied to such deposit and any similar and simultaneous deposit relating to other indebtedness and, in connection with such defeasance or each case, the granting of Liens on the funds deposited in connection therewith);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Parent or any of its Subsidiaries is a party or by which the Company Parent or any of its Subsidiaries is boundbound (other than any such Default or default relating to any indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such indebtedness, and the granting of Liens on the funds deposited in connection therewith);
(f6) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by them with the Company intent of preferring the Holders of such Notes over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company Issuers or others; and
(g7) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to in, in the Legal Defeasance or case of the Covenant DefeasanceOfficer’s Certificate, clauses (1) through (6), as applicable, and, in the case may beof the Opinion of Counsel, clauses (2), if applicable, and/or (3) and (5) of this Section 8.03 have been complied with.
Appears in 2 contracts
Samples: Indenture (Pocatello Idaho Property, L.L.C.), Indenture (Pocatello Idaho Property, L.L.C.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, cash in U.S. Legal TenderUnited States dollars, U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm, to pay and discharge the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the Stated Maturity (or the applicable redemption date), if at or prior to electing either Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on which such principalredemption date, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to Stated Maturity or on any to a particular redemption date established pursuant to this Indenturedate);
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the effect Trustee confirming 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as an Event of Default or Default resulting from the incurrence of Indebtedness or Liens securing such Indebtedness, all or a result portion of borrowing funds in connection with the proceeds of which will be applied to such defeasance or granting of Liens in connection therewithdeposit);
(e) such Legal Defeasance or Covenant Defeasance deposit shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Company, any Subsidiary Guarantor or any Restricted Subsidiary is a party or by which it is bound or if such breach or default would occur, which is not waived as of, or for all purposes, on or after, the Company is bounddate of such deposit;
(f) 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 or any Guarantee over the other creditors of the Company or any Subsidiary Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company Company, any Subsidiary Guarantor or others; and
(g) the Company shall will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Appears in 2 contracts
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a1) the Company must Issuers shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment bank selected by the Issuers, to pay the principal of, and any premium of and interest onand premium, if any, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indentureof the Notes;
(b2) in the case of Legal Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States of America confirming that that:
(a) the Company has Issuers have received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) 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 this Opinion of Counsel shall confirm that, 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 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;
(c3) in the case of Covenant Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to the effect Trustee confirming that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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 the Covenant Defeasance had not occurred;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds to be applied to such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in connection with such defeasance or each case, the granting of Liens on the deposited funds in connection therewith);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Parent or any of its Subsidiaries is a party or by which the Company Parent or any of its Subsidiaries is boundbound (other than any such Default or default relating to any Indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such Indebtedness, and the granting of Liens on the deposited funds in connection therewith);
(f6) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by them with the Company intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other of their creditors of the Company or others; and
(g7) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to in, in the Legal Defeasance or case of the Covenant DefeasanceOfficer’s Certificate, clauses (1) through (6), as applicable, and, in the case may beof the Opinion of Counsel, clauses (2), if applicable, and/or (3) and (5) of this Section 8.03 have been complied with.
Appears in 2 contracts
Samples: Indenture (Ryman Hospitality Properties, Inc.), Indenture (Ryman Hospitality Properties, Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notesapplicable Notes issued hereunder, cash in U.S. Legal Tender, non-callable U.S. Government Securities, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, or interest and any premium and interest onAdditional Interest, if any, on the outstanding Notes issued hereunder on each date the Stated Maturity or on which such principalthe applicable Redemption Date, as the case may be, and any premium and interest is due and payable the Issuer must specify whether the Notes are being defeased to maturity or on any redemption date established pursuant to this Indenturea particular Redemption Date;
(b) in the case of Legal Defeasancean election under Section 8.02(b) hereof, the Company shall have Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Company Issuer has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (b) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall will 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 8.02(c) hereof, the Company shall have Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect Trustee confirming 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 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 shall have has occurred and be is continuing with respect to the Notes on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings) or insofar as a result Events of Default resulting from the borrowing of funds or insolvency events are concerned, at any time in connection with such defeasance or granting the period ending on the 123rd day after the date of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Issuer or any Guarantor is a party or by which the Company Issuer or any Guarantor is bound;
(f) the Company shall have delivered Issuer must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company Issuer with the intent of preferring Holders over other creditors of the Issuer or any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Company Issuer or any Guarantors or others; and;
(g) the Company shall have delivered Issuer must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with; and
(h) the Issuer must deliver 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, as including those arising under this Indenture, and (B) the case may betrust funds will not be subject to the effect of the preference provisions of Section 547 of the United States Federal Bankruptcy Code.
Appears in 2 contracts
Samples: Indenture (PQ Systems INC), Indenture (Warner Chilcott CORP)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 Section 9.03 to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderlegal tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts asas shall be sufficient (without consideration of any reinvestment of interest), in as evidenced by an Officer’s Certificate of the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsIssuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenture;the Redemption Date of the principal or installment of principal of or interest on the Notes,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this IndentureIssue Date, 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 beneficial owners of the such outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners beneficial owners of the such 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, other than this Indenture, or instrument to which the Company is a party or by which the Company is bound;
(f5) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders of such Notes over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g6) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officer’s Certificate, clauses (1) through (4) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) of this paragraph have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the obligations of the Issuer and the obligations of the Guarantors under this Indenture shall be revived and no such defeasance shall be deemed to have occurred.
Appears in 2 contracts
Samples: Indenture (Match Group, Inc.), Indenture (Match Group, Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a1) the Company must Issuers shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuers, to pay the principal of, and any premium of and interest onand premium, if any, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indentureof the Notes;
(b2) in the case of Legal Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States of America confirming that that:
(a) the Company has Issuers have received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) 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 this Opinion of Counsel shall confirm that, 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 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;
(c3) in the case of Covenant Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to the effect Trustee confirming that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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 the Covenant Defeasance had not occurred;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds to be applied to such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in connection with such defeasance or each case, the granting of Liens on the deposited funds in connection therewith);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Parent or any of its Subsidiaries is a party or by which the Company Parent or any of its Subsidiaries is boundbound (other than any such Default or default relating to any Indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such Indebtedness, and the granting of Liens on the deposited funds in connection therewith);
(f6) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by them with the Company intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other of their creditors of the Company or others; and
(g7) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to in, in the Legal Defeasance or case of the Covenant DefeasanceOfficer’s Certificate, clauses (1) through (6), as applicable, and, in the case may beof the Opinion of Counsel, clauses (2), if applicable, and/or (3) and (5) of this Section 8.03 have been complied with.
Appears in 2 contracts
Samples: Indenture (Ryman Hospitality Properties, Inc.), Indenture (Ryman Hospitality Properties, Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance under Section 8.02 8.02(b) or 8.03 Covenant Defeasance under Section 8.02(c) with respect to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash funds in U.S. Legal Tender, Dollars or U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date for payment thereof or on which such principalthe applicable Redemption Date, as the case may be, and any premium the Issuer must specify to the Trustee whether such Notes are being defeased to such stated date for payment or to a particular Redemption Date, as the case may be and the Holders must have a valid, perfected, exclusive security interest is due and payable or on any redemption date established pursuant to this Indenturein such trust;
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that that:
(i) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(ii) since the date of this IndentureIssue Date, 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 this 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 Legal Defeasance had not occurred;
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting deposit and the grant of Liens in connection therewithany Lien securing such borrowing);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under (other than any such default resulting solely from the borrowing of funds to be applied to such deposit and the grant of any Lien on such deposit in favor of the Trustee or the Holders) any Credit Agreement or any other material agreement, other than this Indenture, agreement or instrument to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is bound;
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company Issuer with the intent of preferring the Holders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating Counsel, stating, in the case of the Officers’ Certificate, that the Company has conditions provided for in clauses (1) through (6) of this Section 8.03, as applicable, have been complied with all and stating, in the case of the Opinion of Counsel, that clause (1) (with respect to the validity and perfection of the security interest) and the conditions precedent provided for relating in clause (2) or (3), as applicable, and clause (5) of this Section 8.03 have been complied with. Notwithstanding anything to the contrary herein, the borrowing of funds to be applied to any deposit, and the grant of any Lien securing such borrowing, in order to effect any Legal Defeasance or the Covenant Defeasance, as the case may beshall not constitute a Default under this Indenture.
Appears in 2 contracts
Samples: Supplemental Indenture (Alere Inc.), Sixteenth Supplemental Indenture (Alere Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding NotesOutstanding Securities of a series: In order to exercise either Legal Defeasance or Covenant Defeasance:
(a1) the Company Casella must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesSecurities of such series, cash in U.S. Legal Tender, U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest onon the Outstanding Securities of such series on the Stated Maturity or on the applicable redemption date, as the outstanding Notes on each date on which such principalcase may be, and any premium and interest is due and payable Casella must specify whether the Securities of such series are being defeased to maturity or on any to a particular redemption date established pursuant to this Indenturedate;
(b2) in the case of Legal Defeasancean election under Section 8.02(b) hereof, the Company Casella shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Company (a) Casella has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (b) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners Holders of the outstanding Notes Outstanding Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c3) in the case of Covenant Defeasancean election under Section 8.02(c) hereof, the Company Casella shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect Trustee confirming that the Beneficial Owners Holders of the outstanding Notes Outstanding Securities of such series 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes either: (a) on the date of such deposit (other than a Default resulting from the borrowing of funds to be applied to such deposit), or (b) insofar as a result Events of borrowing funds Default from bankruptcy or insolvency events are concerned, at any time in connection with the period ending on the 91st day after the date of deposit; provided that such defeasance Legal Defeasance or granting Covenant Defeasance, as the case may be, shall be deemed to have occurred on the date of Liens in connection therewith)such deposit, subject to an Event of Default from bankruptcy or insolvency within such 91-day period;
(e5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Casella or any of its Restricted Subsidiaries is a party or by which the Company Casella or any of its Restricted Subsidiaries is bound;
(f6) the Company shall have delivered Casella must deliver to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by Casella with the Company intent of preferring the Holders of Securities of such a series over the other creditors of Casella with the intent of defeating, hindering, delaying or defrauding creditors of the Company Casella or others; and
(g7) the Company shall have delivered Casella must deliver to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may beDefeasance have been complied with.
Appears in 2 contracts
Samples: Subordinated Indenture (Total Waste Management Corp.), Senior Indenture (Total Waste Management Corp.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 1302 or 8.03 to the outstanding Notes1303:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal TenderDollars, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, sufficient (without consideration of any reinvestment of interest) in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountantsaccountants selected by the Issuer and delivered to the Trustee, to pay the principal of, and any premium of and interest onand premium, if any, on the outstanding Outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any redemption date established pursuant to this Indenture;the applicable Redemption Date, as the case may be,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or ; or
(b) since the date of this the Indenture, there has been a change in the applicable U.S. federal income tax law, 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 Outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel to in the effect United States confirming that the Beneficial Owners Holders of the outstanding Outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting deposit and the grant of Liens in connection therewithany Lien securing such borrowings);,
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenturethe Indenture and the agreements governing any other Indebtedness being defeased, discharged or instrument replaced) to which the Company Parent Guarantor or any of its Subsidiaries is a party or by which the Company Parent Guarantor or any of its Subsidiaries is bound;,
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may bein clauses (1) through (6) have been complied with.
Appears in 2 contracts
Samples: Indenture (Weatherford International PLC), Indenture (Weatherford International PLC)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.2 or 8.03 8.3 to the outstanding Notes:
(ai) the Company must Issuers shall irrevocably deposit have deposited or cause caused to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tenderdollars, U.S. non-callable Government Securities, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the stated maturity or on which such principalthe applicable redemption date, as the case may be, and any premium and interest is due and payable the Issuers shall specify whether the Notes are being defeased to maturity or on any to a particular redemption date established pursuant to this Indenturedate;
(bii) in the case of Legal Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel confirming that (A) the Company has Issuers have received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this IndentureIssue 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 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 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;
(ciii) in the case of Covenant Defeasance, the Company Issuers 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 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;
(div) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of Default resulting from the borrowing of funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);
(ev) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Issuers or any of the Restricted Subsidiaries is a party or by which the Company Issuers or any of the Restricted Subsidiaries is bound;
(fvi) the Company Issuers shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding creditors of the Company Issuers or others; and
(gvii) the Company Issuers shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating stating, subject to certain factual assumptions and bankruptcy and insolvency exceptions, that the Company has complied with all conditions precedent provided for in this Indenture relating to the Legal Defeasance or the Covenant Defeasance, as the case may beDefeasance have been complied with.
Appears in 2 contracts
Samples: Indenture (Majestic Star Casino LLC), Indenture (Majestic Star Casino LLC)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 the legal defeasance option as the covenant defeasance option hereof to the outstanding Notes: In order to exercise either legal defeasance or covenant defeasance:
(a1) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notesholders, cash in U.S. Legal Tenderdollars, U.S. Government Securities, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm delivered to the Trustee, without consideration of any reinvestment of interest, to pay the principal ofprincipal, premium, if any, and any premium and interest on, due on the outstanding Notes on each date the Stated Maturity or on which such principalthe applicable redemption date, as the case may be, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to maturity or on any to a particular redemption date established pursuant to this Indenturedate;
(b2) in the case of Legal Defeasancean election of legal defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming that that, subject to customary assumptions and exclusions, (a) the Company has received from from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (b) since the date of this IndentureIssue Date, 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 will confirm that, 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 Legal Defeasance and beneficial owners will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance legal defeasance had not occurred;
(c3) in the case of Covenant Defeasancean election of covenant defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming that, subject to customary assumptions and exclusions, 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 beneficial owners 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 covenant defeasance had not occurred;
(d4) no Default or Event of Default shall have has occurred and be is continuing with respect to the Notes on the date of such deposit (other than or will occur as a result of such deposit (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Debt and, in connection with such defeasance or each case, the granting of Liens in connection therewith);
(e) such Legal Defeasance or Covenant Defeasance shall and the deposit will not result in a breach or violation of, or constitute a default under under, the Credit Agreement or any other material agreement, agreement or material debt instrument (other than this Indenture, or instrument ) to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(f5) the Company shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent relating to the deposit was not made by legal defeasance or the Company with covenant defeasance, as the intent of defeatingcase may be, hindering, delaying or defrauding creditors of the Company or othershave been complied with; and
(g6) the Company shall have delivered irrevocable instructions to the Trustee an Officers’ Certificate and an Opinion to apply the deposited money toward the payment of Counsel each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance Notes at maturity or the Covenant Defeasanceredemption date, as the case may be.
Appears in 2 contracts
Samples: Indenture (Western Digital Corp), Indenture (WD Media, LLC)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 13.1(b) or 8.03 13.1(c) hereof to the outstanding Notes:
(a1) the Company must Issuer shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indentureof the Notes;
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that, subject to customary assumptions and exclusions:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) 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 this 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 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;
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect that Trustee confirming that, subject to customary assumptions and exclusions, 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds to be applied to such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in connection with such defeasance or each case, the granting of Liens on the deposited funds in connection therewith);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Parent or any of its Subsidiaries is a party or by which the Company Parent or any of its Subsidiaries is boundbound (other than any such Default or default relating to any Indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such Indebtedness, and the granting of Liens on the deposited funds in connection therewith);
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by them with the Company intent of preferring the Holders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other of their creditors of the Company or others; and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to in, in the Legal Defeasance or case of the Covenant DefeasanceOfficer’s Certificate, clauses (1) through (6), as applicable, and, in the case may beof the Opinion of Counsel, clauses (2) or (3), as applicable, and (5) of this Section 13.2 have been complied with.
Appears in 1 contract
Samples: First Supplemental Indenture (Sabra Health Care REIT, Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a) the Company Issuers must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notesapplicable Notes issued hereunder, cash in U.S. Legal Tender, non-callable U.S. Government Securities, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, or interest and any premium and interest onAdditional Interest, if any, on the outstanding Notes issued hereunder on each date the Stated Maturity or on which such principalthe applicable Redemption Date, as the case may be, and any premium and interest is due and payable the Issuers must specify whether the Notes are being defeased to maturity or on any redemption date established pursuant to this Indenturea particular Redemption Date;
(b) in the case of Legal Defeasancean election under Section 8.02(b) hereof, the Company shall Issuers have delivered to the Trustee an Opinion of Counsel acceptable to the Trustee confirming that (a) the Company has Issuers have received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (b) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall will 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 8.02(c) hereof, the Company shall Issuers have delivered to the Trustee an Opinion of Counsel acceptable to the effect Trustee confirming 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 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 shall have has occurred and be is continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of Default resulting from the borrowing of funds in connection with to be applied to such defeasance or granting deposit and the grant of Liens in connection therewithany Lien securing such borrowings);
(e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Company, the Co-Issuer or any Guarantor is a party or by which the Company Company, the Co-Issuer or any Guarantor is bound;; and
(f) 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 defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g) the Company shall have delivered Issuers must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may beDefeasance have been complied with.
Appears in 1 contract
Samples: Indenture (Warner Chilcott PLC)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance pursuant to Section 8.02 9.01(b) or 8.03 Covenant Defeasance pursuant to the outstanding Notes:Section 9.01(c):
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. dollars or United States Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any the applicable redemption date established pursuant to this Indenturedate, as the case may be;
(b) in the case of Legal Defeasancean election under Section 9.01(b), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners Holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 9.01(c), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of Default resulting on such date from the borrowing of funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, of or constitute a default under any other material agreement, other than this Indenture, agreement or instrument 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 shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the trust funds will not be subject to any rights of holders of Senior Indebtedness, as including, without limitation, those arising under this Indenture. Notwithstanding the case may beforegoing, the Opinion of Counsel required by clause (b) above with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (1) have become due and payable or (2) will become due and payable on the maturity date within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Nbty Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 1202 or 8.03 Section 1203 to the outstanding Outstanding Notes:
(ai) the The Company must irrevocably deposit or cause to be deposited with the Trustee, Trustee (or another trustee satisfying the requirements of this Indenture who shall agree to comply with the provisions of this Article Twelve applicable to it) as trust funds in trusttrust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the such Notes, cash in U.S. Legal Tenderdollars, U.S. non-callable Government Securities, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Company, to pay the principal of, premium, if any, interest and any premium and interest onLiquidated Damages, if any, due on the outstanding Outstanding Notes on each date the Stated Maturity or on which the applicable Redemption Date as the case may be, of such principal, and any premium and premium, if any, or interest is due and payable or on any redemption date established pursuant to this Indenturethe Outstanding Notes;
(bii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that that, subject to customary assumptions and exclusions, (A) the Company has received from from, or there has been published by, the United States Internal Revenue Service a ruling, ruling or (B) since the date of this IndentureIssuance Date, 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 in the United States shall confirm that, subject to customary assumptions and exclusions, the Beneficial Owners Holders of the outstanding Outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(ciii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect that Trustee confirming that, subject to customary assumptions and exclusions, the Beneficial Owners Holders of the outstanding 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 such 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 or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than or insofar as a result Events of borrowing funds Default from bankruptcy or insolvency 122 events are concerned, at any time in connection with such defeasance or granting the period ending on the 91st day after the date of Liens in connection therewith)deposit;
(ev) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(fvi) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, as of the date of such opinion and subject to customary assumptions and exclusions 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 under any applicable U.S. federal or state law, and that the Trustee has a perfected security interest in such trust funds for the ratable benefit of the Holders;
(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 defeating, hindering, delaying or defrauding any creditors of the Company or any Guarantor or others; and
(gviii) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel in the United States (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Appears in 1 contract
Samples: Indenture (Boyds Collection LTD)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.2(b) or 8.03 8.2(c) hereof to the outstanding NotesSecurities: In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company Issuers must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, Tender or U.S. Government Securities, Obligations or a combination thereof (“Funds which through the scheduled payment of principal and interest in Trust”)respect thereof in accordance with their terms, will provide, not later than one day before the due date of any payment on the Securities, U.S. Legal Tender in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes Securities on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any redemption date established pursuant to this Indenturethe applicable Redemption Date, as the case may be;
(b) in the case of a Legal Defeasance, the Company each Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has Issuers have received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners of the 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 Legal Defeasance had not occurred;
(c) in the case of a Covenant Defeasance, the Company each Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of borrowing funds in connection Default resulting from the incurrence of Indebtedness all or a portion of the proceeds of which will be used to defease the Securities pursuant to this Article Eight concurrently with such defeasance incurrence and the grant of any Lien securing such incurrence) or granting insofar as Sections 6.1(f) and 6.1(g) hereof are concerned, at any time in the period ending on the 91st day after the date of Liens in connection therewith)such deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture (other than a Default or Event of Default resulting from the incurrence of Indebtedness all or a portion of the proceeds of which will be used to defease the Securities pursuant to this Article Eight concurrently with such incurrence and the grant of any Lien securing such incurrence), the Senior Secured Credit Agreement or any other material agreement, other than this Indenture, agreement or instrument to which the Company Parent or any of its Restricted Subsidiaries is a party or by which the Company Parent or any of its Restricted Subsidiaries is bound;
(f) the Company each Issuer shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company Issuers or others; and;
(g) the Company each Issuer shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with;
(h) each Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that (i) the trust funds will not be subject to any rights of any holders of Senior Debt or Guarantor Senior Debt, including, without limitation, those arising under this Indenture, and (ii) assuming no intervening bankruptcy or insolvency of an Issuer between the date of deposit and the 91st day following the deposit and that no Holder is an insider of an Issuer, after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law; and
(i) if at the time, Securities are listed on a national securities exchange, each Issuer shall have delivered to the Trustee and Opinion of Counsel to the effect that the Securities will not be delisted as a result of such deposit, defeasance and discharge. Notwithstanding the case may beforegoing, the Opinion of Counsel required by clause (b) above of this Section 8.3 with respect to a Legal Defeasance need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (i) have become due and payable or (ii) will become due and payable on the Maturity Date within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuers.
Appears in 1 contract
Samples: Indenture (Natg Holdings LLC)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 9.03 to the outstanding NotesNotes and the Guarantees: In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must Issuers shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, cash in U.S. Legal Tender, U.S. Government Securities, Trustee (or a combination thereof (“Funds in Trust”other qualifying trustee), in trust for such amounts aspurpose, of money and/or non-callable U.S. Government Obligation which through the payment of principal and interest in accordance with their terms will provide money, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, an amount sufficient to pay the principal of, and any premium premium, if any, and interest onon the Notes, on the outstanding Notes on each date on which such principal, and any premium and interest is scheduled due and payable dates therefore or on any a selected date of redemption date established pursuant to in accordance with the terms of this Indenture;
(b) in the case of Legal Defeasancean election under Section 9.02, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel confirming stating that (i) the Company has Issuers have received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (ii) since the date of this Indenture, there has been a change in the any 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 or Persons in their positions 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 Covenant Defeasancean election under Section 9.03, the Company Issuers 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 Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have has occurred and be is continuing with respect to the Notes on the date of such deposit (other than or insofar as a result Events of borrowing funds Default from bankruptcy, insolvency, or reorganization events are concerned, at any time in connection with such defeasance or granting the period ending on the 91st day after the date of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, of or constitute a Default under this Indenture or a default under any other material agreement, other than this Indenture, agreement or instrument to which the Company Parent or any of its Subsidiaries is a party or by which the Company Parent or any of its Subsidiaries is bound;
(f) the Company Issuers shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders over any other creditors of Parent or its Subsidiaries or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company Parent or others; and;
(g) the Company Issuers shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with;
(h) the Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect that assuming no intervening event of the type described in Sections 6.01(f) and 6.01(g) between the date of deposit and the 91st day following the deposit or, if longer, ending on the day following the expiration of the longest preference period under any Bankruptcy Law and further assuming that no Holder is an insider of either of the Issuers, after the 91st day following the deposit or, if longer, ending on the day following the expiration of the longest preference period under any Bankruptcy Law, the trust funds will not be subject to the effect of any applicable Bankruptcy Law; and
(i) the Issuers shall have delivered to the Trustee an Opinion of Counsel stating that, as a result of such Legal Defeasance or Covenant Defeasance, neither the trust nor the Trustee will be required to register as an investment company under the case may beInvestment Issuers Act of 1940, as amended.
Appears in 1 contract
Samples: Indenture (3055854 Nova Scotia Co)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 Section 9.03 to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tenderlegal tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, sufficient (without reinvestment) in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indenture;of the principal or installment of principal of or interest on the Notes,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this Indenturehereof, 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 this 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 the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting deposit and the grant of Liens in connection therewithany Lien securing such borrowing);,
(e5) such the 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, other than this Indenture, agreement or instrument to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is bound;,
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officers’ Certificate, clauses (1) through (6) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) and (5) of this paragraph have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the Issuer’s obligations and the obligations of Guarantors under this Indenture will be revived and no such defeasance will be deemed to have occurred.
Appears in 1 contract
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions precedent to the application of either Section 8.02 1202 or 8.03 Section 1203 to the outstanding Outstanding Notes:
(a1) the The Company must shall irrevocably deposit have deposited or cause caused to be deposited with the Trustee, Trustee as trust funds in trusttrust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the such Notes, cash in U.S. Legal Tenderdollars, U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, the outstanding Outstanding Notes on each to Maturity. Before such a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Notes at a future date on or dates in accordance with Article Eleven, which such principal, and any premium and interest is due and payable or on any redemption date established pursuant to this Indentureshall be given effect in applying the foregoing;
(b2) in In the case of Legal Defeasancelegal defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming stating that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon thereon, such Opinion of Counsel shall confirm that, the Beneficial Owners Holders of the outstanding Outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance legal defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance legal defeasance had not occurred;
(c3) in In the case of Covenant Defeasancecovenant defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States to the effect that the Beneficial Owners Holders of the outstanding Outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance 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 covenant defeasance had not occurred;
(d4) no No Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit deposit, after giving effect thereto, or, in the case of legal defeasance, insofar as subclauses (other than as a result a)(6) and (a)(7) under Section 501(a) are concerned, at any time in the period ending the 91st day after the date of borrowing funds in connection with such defeasance or granting of Liens in connection therewith)deposit;
(e5) such Legal Defeasance Such legal defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under under, any other material agreement, other than this Indenture, agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound;
(f6) the 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 Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g7) the The Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to either the Legal Defeasance legal defeasance or the Covenant Defeasancecovenant defeasance, as the case may be, have been complied with.
Appears in 1 contract
Samples: Indenture (Presidential Life Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 9.03 hereof to the outstanding NotesNotes and the Note Guarantees:
(a1) the Company Issuers must irrevocably deposit or cause to be deposited with the TrusteeTrustee (or other qualifying trustee), as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, dollars or U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without consideration of any reinvestment of interest), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuers, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each date on which such principal, and any premium and interest is the scheduled due and payable dates or on any redemption date established pursuant the applicable Redemption Date, as the case may be, provided that the Trustee shall have received an irrevocable written order from the Issuers instructing the Trustee to this Indentureapply such U.S. dollars or the proceeds of such U.S. Government Obligations to said payments with respect to such Notes;
(b2) in the case of Legal Defeasancean election under Section 9.02 hereof, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (A) the Company has Issuers have received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners of the outstanding Notes Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit, Legal Defeasance and discharge and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c3) in the case of Covenant Defeasancean election under Section 9.03 hereof, the Company Issuers 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 income tax purposes as a result of such deposit, Covenant Defeasance and discharge 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of borrowing funds in connection Default resulting from the incurrence of Indebtedness all or a portion of the proceeds of which will be used to defease the Notes concurrently with such defeasance or granting of Liens in connection therewithincurrence);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, of or constitute a default under this Indenture or any other material agreement, other than this Indenture, agreement or instrument to which the Company Issuers or any of its Subsidiaries is a party or by which the Company Issuers or any of its Subsidiaries is boundbound (other than any such Default or default resulting solely from the borrowing of funds to be applied to such deposit and the grant of any Lien to secure such borrowings);
(f6) the Company Issuers shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company Issuers or others;
(7) 123 days pass after the deposit is made and during such 123-day period no Default specified in clause (h) or (i) of Section 6.01 with respect to the Company occurs that is continuing at the end of the period; and
(g) 8) the Company Issuers shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officers’ Certificate, clauses (1) through (7) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) and (5) of this Section 9.04 have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the Issuers’ obligations and the obligations of the Guarantors will be revived and no such defeasance will be deemed to have occurred.
Appears in 1 contract
Samples: Indenture (Stonemor Partners Lp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 11.2 or 8.03 Section 11.3 to the then outstanding Notes:
(a1) the Company must Defeasor shall have irrevocably deposit or cause to be deposited in trust (the “Defeasance Trust”), with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, Trustee for the benefit of the Holders holders of the Notes, cash in U.S. Legal Tender, U.S. euro or euro-denominated Government Securities, or a combination thereof (“Funds in Trust”), Obligations in such amounts as, in the aggregate, as will be sufficient, in sufficient for the opinion payment of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium and interest on, the outstanding Notes on each date on which such principal, premium, if any, interest and any premium and interest is due and payable Additional Amounts, if any, on the Notes to redemption or on any redemption date established pursuant to this Indenture;maturity, as the case may be.
(b2) in In the case of Legal Defeasance, (i) the Company shall have delivered to the Trustee an Opinion of Counsel confirming from the United States counsel stating that (x) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture, Indenture 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 opinion shall confirm that, the Beneficial Owners holders of the outstanding Outstanding Notes will not recognize income, gain or loss for U.S. federal United States Federal income tax purposes as a result of such deposit and Legal Defeasance and will be subject to U.S. federal United States 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 Legal Defeasance had not occurred, and (ii) the Company shall have delivered to the Trustee an Opinion of Counsel from Swedish counsel stating that holders will not recognize income, gain or loss for Swedish tax purposes as a result of such deposit and defeasance and will be subject to Swedish taxes on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance deposit and defeasance had not occurred;.
(c3) in In the case of Covenant Defeasance, (i) the Company shall have delivered to the Trustee an Opinion of Counsel from the United States counsel to the effect that the Beneficial Owners holders of the outstanding Outstanding Notes will not recognize income, gain or loss for U.S. federal United States Federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to United States Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred, and (ii) the Company shall have delivered to the Trustee an Opinion of Counsel from Swedish counsel stating that holders will not recognize income, gain or loss for Swedish tax purposes as a result of such deposit and Covenant Defeasance and will be subject to U.S. federal income tax Swedish taxes on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance deposit and defeasance had not occurred;.
(d4) no No Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit or, insofar as Subsections 5.1(7) through (other than as a result 11) is concerned, at any time during the period ending on the 121st day after the date of borrowing funds in connection with such defeasance or granting deposit (it being understood that this condition shall not be deemed satisfied until the expiration of Liens in connection therewithsuch period);.
(e5) such Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under under, any other material agreement, other than this Indenture, agreement or instrument to which the Company is a party or by which the Company it is bound;.
(f6) 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 defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g) the The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the either Legal Defeasance under Section 11.2 or the Covenant Defeasance, Defeasance under Section 11.3 (as the case may be) have been complied with.
(7) Such Legal Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company as defined in the Investment Company Act of 1940, as amended, or such trust shall be qualified under such act or exempt from or not subject to regulation thereunder.
Appears in 1 contract
Samples: Indenture (Stena Ab)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 Section 9.03 to the outstanding Notes:
(a1) the Company Issuers must irrevocably deposit or cause to be deposited with the Trustee, as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tenderlegal tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, sufficient (without consideration of any reinvestment of interest) in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by Starz, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenture;the Redemption Date of the principal or installment of principal of or interest on the Notes,
(b2) in the case of Legal Defeasance, the Company Starz shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company has Issuers have received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this IndentureIssue Date, 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 the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Starz shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute (a) a Default under this Indenture or (b) a default under any other material agreement, other than this Indenture, agreement or instrument to which the Company Starz or any of its Subsidiaries is a party or by which Starz or any of its Subsidiaries is bound (other than any such Default or default resulting solely from the Company is bound;borrowing of funds to be applied to such deposit),
(f6) the Company Starz shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders over any other of their creditors or with the intent of defeating, hindering, delaying or defrauding any other of their creditors of the Company or others; , and
(g7) the Company Starz shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officer’s Certificate, clauses (1) through (6) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) and (5) of this paragraph have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the obligations of the Issuers and the obligations of the Guarantors under this Indenture will be revived and no such defeasance will be deemed to have occurred.
Appears in 1 contract
Samples: Indenture (Starz, LLC)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 Section 9.03 hereof to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tenderlegal tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, will as shall be sufficient, sufficient (without reinvestment) in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal ofof and interest on the Notes on the stated date for payment or on the redemption date of the principal or installment of principal of or interest on the Notes, and any premium and the Holders must have a valid, perfected, exclusive security interest on, the outstanding Notes on each date on which in such principal, and any premium and interest is due and payable or on any redemption date established pursuant to this Indenture;trust,
(b2) in the case of Legal Defeasance, Section 9.02, the Company Issuer shall have delivered to the Trustee an Opinion opinion of Counsel counsel in the United States reasonably acceptable to the Trustee confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion this opinion of Counsel 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 the Legal 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 Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, Section 9.03, the Company Issuer shall have delivered to the Trustee an Opinion opinion of Counsel counsel in the United States reasonably acceptable to the effect Trustee confirming 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 Covenant 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than a Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing) or, in so far as a result Section 6.01(7) or Section 6.01(8) hereof is concerned, at any time in the period ending on the 91st day after the date of borrowing funds in connection with such defeasance or granting deposit (it being understood that this condition shall not be deemed satisfied until the expiration of Liens in connection therewithsuch period);,
(e5) such the 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, other than this Indenture, agreement or instrument to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is bound;,
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion opinion of Counsel counsel, each stating that the Company has complied with all conditions precedent provided for relating in, in the case of the Officers’ Certificate, clauses (1) through (6) and, in the case of the opinion of counsel, clauses (l){with respect to the Legal Defeasance or validity and perfection of the Covenant Defeasancesecurity interest), as the case may be(2) and/or (3) and (5) of this paragraph have been complied with.
Appears in 1 contract
Samples: Indenture (Ipsco Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance pursuant to Section 8.02 8.02(b) or 8.03 Covenant Defeasance pursuant to the outstanding Notes:Section 8.02(c):
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. money or United States Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes Securities on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any the applicable redemption date established pursuant to this Indenturedate, as the case may be;
(b) in the case of Legal Defeasancean election under Section 8.02(b), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 8.02(c), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the 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 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 shall have occurred and be continuing with respect to the Notes 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 a result Sections 6.01(f) and 6.01(g) are concerned, at any time in the period ending on the 91st day after the date of borrowing funds in connection with such defeasance or granting of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, of or constitute a default Default under this Indenture or any other material agreement, other than this Indenture, agreement or instrument 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 shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that assuming no intervening bankruptcy or insolvency of the Company between the date of deposit and the 91st day following the deposit and that no Holder is an insider of the Company, as after the case may be91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors’ rights generally. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) above need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (x) have become due and payable, (y) will become due and payable on the Final Maturity Date within one year or (z) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Lin Tv Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Notes:
(a) the Company Co-Obligors must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, Notes cash in U.S. Legal TenderUnited States dollars, U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm, to pay and discharge the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date on which such principal, and any premium and interest is due and payable the Stated Maturity (or on any redemption date established pursuant after August 1, 2008 (such date being referred to this Indentureas the “Defeasance Redemption Date”), if at or prior to electing either Legal Defeasance or Covenant Defeasance, the Co-Obligors have delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on the Defeasance Redemption Date);
(b) in the case of Legal Defeasance, the Company Co-Obligors shall have delivered to the Trustee an Opinion opinion of Counsel confirming independent counsel in the United States stating that (A) the Company has Co-Obligors have received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion opinion of Counsel independent counsel in the United States 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company Co-Obligors shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States to the effect 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result any such Default resulting solely from the borrowing of borrowing funds to be applied to the Funds in connection with such defeasance or granting of Liens in connection therewithTrust);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under Default under, this Indenture or any other material agreement, other than this Indenture, agreement or instrument to which the Company Company, Xxxxx Xxxxx GP, any Guarantor or any Restricted Subsidiary is a party or by which any of them is bound (other than any such Default resulting solely from the Company is boundborrowing of funds to be applied to the Funds in Trust);
(f) the Company Co-Obligors shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company Co-Obligors with the intent of preferring the holders of the Notes or any Guarantee over the other creditors of the Company, Xxxxx Xxxxx GP or any Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company Company, Xxxxx Xxxxx GP, any Guarantor or others; and
(g) the Company shall Co-Obligors will have delivered to the Trustee an Officers’ Certificate and an Opinion opinion of Counsel independent counsel, each stating that the Company has complied with all conditions precedent provided for relating to either the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Appears in 1 contract
Samples: Indenture (Duane Reade Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 13.1(b) or 8.03 13.1(c) hereof to the outstanding Notes:
(a1) the Company must Issuers shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuers, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indentureof the Notes;
(b2) in the case of Legal Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that, subject to customary assumptions and exclusions:
(a) the Company has Issuers have received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) 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 this 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 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;
(c3) in the case of Covenant Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect that Trustee confirming that, subject to customary assumptions and exclusions, 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds to be applied to such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in connection with such defeasance or each case, the granting of Liens on the deposited funds in connection therewith);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Parent or any of its Subsidiaries is a party or by which the Company Parent or any of its Subsidiaries is boundbound (other than any such Default or default relating to any Indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such Indebtedness, and the granting of Liens on the deposited funds in connection therewith);
(f6) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by them with the Company intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other of their creditors of the Company or others; and
(g7) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to in, in the Legal Defeasance or case of the Covenant DefeasanceOfficer’s Certificate, clauses (1) through (6), as applicable, and, in the case may beof the Opinion of Counsel, clauses (2) or (3), as applicable, and (5) of this Section 13.2 have been complied with.
Appears in 1 contract
Samples: Ninth Supplemental Indenture (Sabra Health Care REIT, Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. (a) The following shall be the conditions to the application exercise of either the Legal Defeasance option under Section 8.02 or the Covenant Defeasance option under Section 8.03 with respect to the outstanding Notes:
(a1) the Company must irrevocably deposit have deposited or cause caused to be deposited with the Trustee, Trustee as trust funds in trusttrust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, to the benefit benefits of the Holders of the such Notes, : (A) cash in U.S. Legal Tenderdollars in an amount, U.S. or (B) Government Securities, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (C) a combination thereof (“Funds in Trust”)thereof, in such amounts aseach case sufficient (if requested by the Trustee, as confirmed, certified or attested to by an Independent Financial Advisor in a written certification delivered to the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsTrustee) without reinvestment, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal ofof and premium, if any, and any premium and interest on, the outstanding on such Notes on each date on which such principal, the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and any premium and interest is due and payable or on any at the expense of the Company) the redemption date established pursuant to thereof, as the case may be, in accordance with the terms of this IndentureIndenture and such Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming that the Company has received from or there has been published by, the Internal Revenue Service a ruling, or since the date of this Indenture, there has been a change in the applicable 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c2) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Beneficial Owners Holders and beneficial owners of the outstanding such Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to U.S. 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 deposit and Covenant Defeasance had were not occurredto occur;
(d3) no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing with respect to at the Notes on the date time of such deposit after giving effect thereto (other than as a result Default or Event of Default resulting from the borrowing of funds in connection with to be applied to such defeasance or granting deposit and the grant of Liens in connection therewithany Lien to secure such borrowing);
(e4) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or material instrument (other than this IndentureIndenture and the agreements governing any other Debt being defeased, discharge or instrument replaced) to which the Company or any of the Guarantors is a party or by which the Company or any of the Guarantors is bound;
(f5) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with;
(6) 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 defeating, hindering, delaying or defrauding any creditors of the Company Company, any Guarantor or others; and
(g7) the Company shall have has delivered irrevocable instructions to the Trustee an Officers’ Certificate and an Opinion to apply the deposited money toward the payment of Counsel each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance Notes at maturity or the Covenant Defeasanceredemption date, as the case may bebe (which instructions may be contained in the Officers’ Certificate referred to in clause (5) above).
Appears in 1 contract
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 9.03 to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited in trust with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderdollars, U.S. Government Securities, Obligations or a combination thereof sufficient (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion without consideration of a nationally recognized firm any reinvestment of independent public accountants, interest) to pay the principal of, and any premium premium, if any, and interest onon the Notes when due at maturity or redemption, as the outstanding Notes on each date on which such principal, and any premium and interest is due and payable or on any redemption date established pursuant to this Indenturecase may be;
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee of an Opinion of Counsel confirming that the Company has received from or there has been published by, the Internal Revenue Service a ruling, or since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, 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 Legal Defeasance deposit and defeasance and will be subject to U.S. federal income tax on the same amountsamount, in the same manner and at the same times as would have been the case if such Legal Defeasance deposit and defeasance had not occurred;
occurred (c) and, in the case of Covenant DefeasanceLegal Defeasance only, such Opinion of Counsel must refer to and be based upon a ruling received by the Issuer from the Internal Revenue Service or published as a revenue ruling or upon a change in applicable U.S. federal income tax law);
(3) with respect to U.S. Government Obligations or a combination of cash and U.S. Government Obligations, the Company Issuer shall have delivered 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 cash 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;
(4) no Default specified in Section 6.01(4) or (5) with respect to the Issuer shall have occurred and be continuing on the date of such deposit; and
(5) the 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result of borrowing funds in connection with such defeasance or granting of Liens in connection therewith);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, other than this Indenture, or instrument to which the Company is a party or by which the Company is bound;
(f) 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 defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g) the Company shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officer’s Certificate, clauses (1) through (4) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) of this paragraph, have been complied with.
Appears in 1 contract
Samples: Indenture (Hilltop Holdings Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding NotesSecurities: In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, Tender or U.S. Government Securities, Obligations or a combination thereof (“Funds which through the scheduled payment of principal and interest in Trust”)respect thereof in accordance with their terms, will provide, not later than one day before the due date of any payment on the Securities, U.S. Legal Tender in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes Securities on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any the applicable redemption date established pursuant to this Indenturedate, as the case may be;
(b) in the case of Legal Defeasancean election under Section 8.02(b) hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners of the 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 Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 8.02(c), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result of borrowing funds in connection with such defeasance or granting of Liens in connection therewith);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture, the Credit Agreement or any other material agreement, other than this Indenture, 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;
(fe) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and
(gf) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with. Notwithstanding the foregoing, as the case may beOpinion of Counsel required by Section 8.03(b) need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (1) have become due and payable or (2) will become due and payable on the maturity date within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Moore Labels Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 1202 or 8.03 Section 1203 to the outstanding Outstanding Notes:
(ai) the The Company must shall irrevocably deposit have deposited or cause caused to be deposited with the Trustee, Trustee (or another trustee satisfying the requirements of the Indenture who shall agree to comply with the provisions of this Article Twelve applicable to it) as trust funds in trusttrust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the such Notes, cash in U.S. Legal Tenderdollars, U.S. non-callable Government Securities, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Company, to pay the principal of, and any premium premium, if any, and interest on, due on the outstanding Outstanding Notes on each date the Stated Maturity or on which the applicable Redemption Date as the case may be, of such principal, and any premium and premium, if any, or interest is due and payable or on any redemption date established pursuant to this Indenturethe Outstanding Notes;
(bii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee (which opinion may be subject to customary assumptions and exclusions) confirming that (A) the Company has received from from, or there has been published by, the United States Internal Revenue Service a ruling, ruling or (B) since the date of this IndentureIssuance Date, 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 in the United States (which opinion may be subject to customary assumptions and exclusions) shall confirm that, 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 Legal Defeasance had not occurred;
(ciii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect that Trustee confirming that, subject to customary assumptions and exclusions, 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 such 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 or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result or, with respect to certain bankruptcy or insolvency Events of borrowing funds in connection with such defeasance or granting Default, on the 91st day after the date of Liens in connection therewith)deposit;
(ev) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under under, the Senior Credit Facilities or any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(fvi) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, as of the date of such opinion and subject to customary assumptions and exclusions 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 under any applicable U.S. federal or state law, and that the Trustee has a perfected security interest in such trust funds for the ratable benefit of the Holders;
(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 defeating, hindering, delaying or defrauding any creditors of the Company or any Guarantor or others; and
(gviii) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel in the United States (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be., have been complied with. 112
Appears in 1 contract
Samples: Indenture (Accuride Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance pursuant to Section 8.02 9.02(b) or 8.03 Covenant Defeasance pursuant to the outstanding Notes:Section 9.02(c):
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. dollars or United States Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes Securities on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any the applicable redemption date established pursuant to this Indenturedate, as the case may be;
(b) in the case of Legal Defeasancean election under Section 9.02(b), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 9.02(c), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result of borrowing funds in connection with such defeasance or granting of Liens in connection therewith);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, of or constitute a default Default under this Indenture or any other material agreement, other than this Indenture, agreement or instrument 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 shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(g) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that assuming no intervening bankruptcy or insolvency of the Company between the date of deposit and the 91st day following the deposit and that no Holder is an insider of the Company, as after the case may be91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) above need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (x) have become due and payable, (y) will become due and payable on the Final Maturity Date within one year or (z) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Lin Television Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 Section 9.03 to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the relevant series of Notes, cash in U.S. Legal Tenderlegal tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, will as shall be sufficient, sufficient (without consideration of any reinvestment of interest) in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes of such series on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenture;the Redemption Date of the principal or installment of principal of or interest on the Notes of such series,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this Indenturehereof, 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 such series of outstanding Notes will shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the Legal 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 Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners Holders of the such series of outstanding Notes will shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute (a) a Default under this Indenture or (b) a default under any other material agreement, other than this Indenture, agreement or instrument to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is bound;bound (other than any such Default or default resulting solely from the borrowing of funds to be applied to such deposit),
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders of such series of Notes over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officers’ Certificate, clauses (1) through (6) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) and (5) of this paragraph have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes of the relevant series when due, then the obligations of the Issuer and the obligations of Guarantors under this Indenture shall be revived and no such defeasance shall be deemed to have occurred.
Appears in 1 contract
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 9.03 to the outstanding NotesNotes and the Guarantees: In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit or cause to be deposited with the TrusteeTrustee (or other qualifying trustee), in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal TenderHolders, U.S. Government Securitieslegal tender and/or non-callable U.S. government obligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date on which such principal, and any premium and interest is the scheduled due and payable dates or on any redemption date established pursuant the applicable Redemption Date, as the case may be, provided that the Trustee shall have received an irrevocable written order from the Company instructing the Trustee to this Indentureapply such U.S. legal tender or the proceeds of such non-callable U.S. government obligations to said payments with respect to the Notes;
(b) in the case of Legal Defeasancean election under Section 9.02, the Company shall have delivered to the Trustee an Opinion of Counsel acceptable to the Trustee confirming that (i) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, 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 deposit, Legal Defeasance and discharge 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, Legal Defeasance and discharge had not occurred;
(c) in the case of Covenant Defeasancean election under Section 9.03, 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 income tax purposes as a result of such deposit, Covenant Defeasance and discharge 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, Covenant Defeasance and discharge had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit or insofar as Sections 6.01(f) and 6.01(g) are concerned, at any time in 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 under any Bankruptcy Law (other than as a result it being understood that this condition shall not be deemed to be satisfied until the expiration of borrowing funds in connection with such defeasance or granting of Liens in connection therewithperiod);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under Default under, this Indenture or any other material agreement, other than this Indenture, 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 shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(g) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with;
(h) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that (i) the trust funds will not be subject to any rights of any holders of Senior Indebtedness, including, without limitation, those arising under this Indenture, and (ii) assuming no intervening event of the type described in Sections 6.01(f) and 6.01(g) between the date of deposit and the 91st day following the deposit or, if longer, ending on the day following the expiration of the longest preference period under any Bankruptcy Law (it being understood that this condition should not be deemed to be satisfied until the expiration of such period) and further assuming that no Holder is an insider of the Company, after the 91st day following the deposit or, if longer, ending on the day following the expiration of the longest preference period under any Bankruptcy Law (it being understood that this condition should not be deemed to be satisfied until the expiration of such period), the trust funds will not be subject to the effect of any applicable Bankruptcy Law;
(i) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest for purposes of the TIA with respect to any securities of the Company; and
(j) the Company shall have delivered to the Trustee an Opinion of Counsel stating that, as a result of such Legal Defeasance or Covenant Defeasance, neither the trust nor the Trustee will be required to register as an investment company under the case may beInvestment Company Act of 1940, as amended.
Appears in 1 contract
Samples: Indenture (Mariner Health Care Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, Notes cash in U.S. Legal TenderUnited States dollars, U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm, to pay and discharge the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the Stated Maturity (or the applicable redemption date), if at or prior to electing either Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on which such principalredemption date, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to maturity or on any to a particular redemption date established pursuant to this Indenturedate);
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion opinion of Counsel 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the effect Trustee confirming 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than an Event of Default or Default resulting from the incurrence of Indebtedness or Liens securing such Indebtedness, all or a portion of the proceeds of which will be applied to such deposit) or insofar as a result clause (8) or clause (9) of borrowing funds in connection with such defeasance or granting Section 6.01 is concerned, at any time during the period ending on the 91st day after the date of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance deposit shall not result in a breach or violation ofbreach, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Company, any Guarantor or any Restricted Subsidiary is a party or by which it is bound or if such breach or default would occur, which is not waived as of, or for all purposes, on or after, the Company is bounddate of such deposit;
(f) such deposit shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(g) the Company shall have delivered to the Trustee an opinion of counsel in the United States reasonably acceptable to the Trustee to the effect that (assuming no Holder of the Notes would be considered an insider of the Company or any Guarantor under any applicable bankruptcy or insolvency law and assuming no intervening bankruptcy or insolvency of the Company or any Guarantor between the date of deposit and the 91st day following the deposit) 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;
(h) 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 or any Guarantee over the other creditors of the Company or any Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company Company, any Guarantor or others; and
(gi) the Company shall will have delivered to the Trustee an Officers’ Certificate and an Opinion opinion of Counsel counsel in the United States reasonably acceptable to the Trustee, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Appears in 1 contract
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance pursuant to Section 8.02 9.02(b) or 8.03 Covenant Defeasance pursuant to the outstanding Notes:Section 9.02(c):
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. legal tender or United States Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal ofof premium, if any, and any premium and interest on, on the outstanding Notes Securities on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any the applicable redemption date established pursuant to this Indenturedate, as the case may be;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming that in the United States reasonably acceptable to the Trustee or a private letter ruling issued to the Company has received from or there has been published by, by the Internal Revenue Service a ruling, or 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 that the Holders of Counsel shall confirm that, the Beneficial Owners of the outstanding Notes Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance the deposit and related defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance option had not occurredbeen exercised and, in the case of an Opinion of Counsel furnished in connection with a Legal Defeasance, accompanied by a private letter ruling issued to the Company by the Internal Revenue Service to such effect;
(c) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);
(d) 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 loan agreement or instrument to which the case Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(e) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, Defeasance have been complied with; and 52 -51-
(f) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Beneficial Owners assuming no intervening bankruptcy or insolvency of the outstanding Notes Company between the date of deposit and the 91st day following the deposit and that no Holder is an insider of the Company, after the 91st day following the deposit, the trust funds 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 amountseffect of any applicable bankruptcy, in insolvency, reorganization or similar law affecting creditors' rights generally. Notwithstanding the same manner and at foregoing, the same times as would have been the case Opinion of Counsel required by clause (b) above need not be delivered if such Covenant Defeasance had all Securities not occurred;
(d) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result of borrowing funds in connection with such defeasance or granting of Liens in connection therewith);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, other than this Indenture, or instrument to which the Company is a party or by which the Company is bound;
(f) the Company shall have theretofore delivered to the Trustee an Officers’ Certificate stating that for cancellation (x) have become due and payable, (y) will become due and payable on the deposit was not made by the Company with the intent of defeating, hindering, delaying Final Maturity Date within one year or defrauding creditors of the Company or others; and
(gz) the Company shall have delivered are to be called for redemption within one year under arrangements satisfactory to the Trustee an Officers’ Certificate for the giving of notice of redemption by the Trustee in the name, and an Opinion at the expense, of Counsel each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may beCompany.
Appears in 1 contract
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.2 or 8.03 8.3 to the outstanding Notes:
(a1) the Company must irrevocably deposit or cause to be irrevocably deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderdollars, non-callable U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent chartered public accountants, expressed in a written opinion thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay the principal of, premium, if any, interest and any premium and interest onAdditional Interest, if any, on the outstanding Notes on each date the Stated Maturity or on which such principalthe applicable redemption date, as the case may be, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to Stated Maturity or on any to a particular redemption date established pursuant to this Indenturedate;
(b2) in the case of Legal Defeasancelegal defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming stating that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this IndentureIssue Date, there has been a change in the applicable U.S. 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 Holders of the outstanding Notes will not recognize income, gain or loss for U.S. United States federal income tax purposes as a result of such Legal Defeasance legal defeasance and will be subject to U.S. United States 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 legal defeasance had not occurred;
(c3) in the case of Covenant Defeasancecovenant defeasance, 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. United States federal income tax purposes as a result of such Covenant Defeasance covenant defeasance and will be subject to U.S. United States 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of Default resulting from the borrowing of funds in connection with to be applied to such defeasance deposit or the granting of Liens in connection therewithany Lien to secure such borrowing);
(e5) such Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
(6) such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company is a party or by which the Company is bound;
(f) 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 defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g7) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating to the effect that the Company has complied with all conditions precedent provided for relating to such legal defeasance or covenant defeasance have been satisfied. Notwithstanding the Legal Defeasance foregoing, the Opinion of Counsel required by clause (2) above with respect to a legal defeasance need not to be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable by reason of the mailing of a notice of redemption or otherwise, (y) will become due and payable within one year or (z) are to be called for redemption within one year under arrangements reasonably satisfactory to the Covenant Defeasance, as Trustee for the case may begiving of notice of redemption by the Trustee.
Appears in 1 contract
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notesapplicable Notes issued hereunder, cash in U.S. Legal Tender, non-callable U.S. Government Securities, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, or interest and any premium and interest onAdditional Interest, if any, on the outstanding Notes issued hereunder on each date the Stated Maturity or on which such principalthe applicable Redemption Date, as the case may be, and any premium and interest is due and payable the Issuer must specify whether the Notes are being defeased to maturity or on any redemption date established pursuant to this Indenturea particular Redemption Date;
(b) in the case of Legal Defeasancean election under Section 8.02(b) hereof, the Company shall have Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Company Issuer has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (b) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall will confirm that, the Beneficial Owners Holders of the respective outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 8.02(c) hereof, the Company shall have Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect Trustee confirming that the Beneficial Owners Holders of the respective 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 shall have has occurred and be is continuing with respect to the Notes on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings) or insofar as a result Events of Default resulting from the borrowing of funds or insolvency events are concerned, at any time in connection with such defeasance or granting the period ending on the 91st day after the date of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Issuer or any of its Restricted Subsidiaries is a party or by which the Company Issuer or any of its Restricted Subsidiaries is bound;
(f) the Company shall have delivered Issuer must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company Issuer with the intent of defeating, hindering, delaying or defrauding creditors of the Company Issuer or others; and;
(g) the Company shall have delivered Issuer must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with; and
(h) the Issuer shall have delivered to the Trustee an Opinion of Counsel (which may be subject to customary exceptions) to the effect that (A) the trust funds will not be subject to any rights of holders of Senior Debt, as including, without limitation, those arising under this Indenture, and (B) after the case may be91st day following the deposit, the trust funds will not be subject to the effect of the preference provisions of Section 547 of the United States Federal Bankruptcy Code.
Appears in 1 contract
Samples: Indenture (LCE AcquisitionSub, Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance pursuant to Section 8.02 9.01(b) or 8.03 Covenant Defeasance pursuant to the outstanding Notes:Section 9.01(c):
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. dollars or United States Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal ofof premium, if any, and any premium and interest on, on the outstanding Notes Securities on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any the applicable redemption date established pursuant to this Indenturedate, as the case may be;
(b) in the case of Legal Defeasancean election under Section 9.01(b), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 9.01(c), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than or insofar as a result Sections 6.01(h) and 6.01(i) are concerned, at any time in the period ending on the 91st day after the date of borrowing funds in connection with such defeasance or granting of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, of or constitute a default Default under this Indenture or any other material agreement, other than this Indenture, 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 shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(g) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that (i) the trust funds will not be subject to any rights of holders of Senior Indebtedness, as including, without limitation, those arising under this Indenture, and (ii) assuming no intervening bankruptcy or insolvency of the case may beCompany between the date of deposit and the 91st day following the deposit and that no Holder is an insider of the Company, after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law. Notwithstanding the foregoing, the opinion of counsel required by clause (b) above need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (x) have become due and payable, (y) will become due and payable on the maturity date within one year or (z) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Nbty Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance pursuant to Section 8.02 9.02(b) or 8.03 Covenant Defeasance pursuant to the outstanding Notes:Section 9.02(c):
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. legal tender or United States Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal ofof premium, if any, and any premium and interest on, on the outstanding Notes Securities on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any the applicable redemption date established pursuant to this Indenturedate, as the case may be;
(b) in the case of Legal Defeasancean election under 9.02(b), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee or confirming that the Company has received from or there has been published by, the Internal Revenue Service a ruling, or since the date Holders 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 Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 9.02(c), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service, a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall confirm that the 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit or insofar as Events of Default from bankruptcy or insolvency events are concerned at any time in the period ending on the 91st day after the date of the deposit (other than as a result Default or Event of Default resulting from the borrowing of funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, of or constitute a default Default under this Indenture or any other material agreement, other than this Indenture, 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 shall have delivered to the Trustee an Officers’ Officer's Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(g) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with; and
(h) the Company 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 Indebtedness, as including without limitation those arising under this Indenture and (B) assuming no intervening bankruptcy or insolvency of the case may beCompany between the date of deposit and the 91st day following the deposit and that no Holder is an insider of the Company, 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 law affecting creditors' rights generally. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) above need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (x) have become due and payable, (y) will become due and payable on the Final Maturity Date within one year or (z) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (MTS Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance pursuant to Section 8.02 9.02(b) or 8.03 Covenant Defeasance pursuant to the outstanding Notes:Section 9.02(c):
(a1) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notescash, cash in U.S. Legal Tender, U.S. Government SecuritiesCash Equivalents, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes Securities on each date on which such principal, and any premium and interest is due and payable the stated Final Maturity Date or on any the applicable Redemption Date, as the case may be and the Company must specify whether the Notes are being defeased to maturity or to a particular redemption date established pursuant to this Indenturedate;
(b2) in the case of Legal Defeasancean election under Section 9.02(b), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (a) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (b) since the date of this IndentureIssue Date, 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 Legal Defeasance had not occurred;
(c3) in the case of Covenant Defeasancean election under Section 9.02(c), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the 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;
(d4) no Default or Event of Default shall have has occurred and be is continuing with respect to the Notes 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 a result Events of borrowing funds Default from bankruptcy or insolvency events are concerned, at any time in connection with such defeasance or granting the period ending on the 91st day after the date of Liens in connection therewith)deposit;
(e5) 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, other than this Indenture, 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;
(f6) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(7) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and
(g) 8) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be.Defeasance have been complied with;
Appears in 1 contract
Samples: Indenture (Carrols Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a1) the Company must Issuers shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuers, to pay the principal of, and any premium of and interest onand premium, if any, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indentureof the Notes;
(b2) in the case of Legal Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company has Issuers have received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) 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 this Opinion of Counsel shall confirm that, that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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;
(c3) in the case of Covenant Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds to be applied to such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in connection with such defeasance or each case, the granting of Liens on the deposited funds in connection therewith);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Parent or any of its Subsidiaries is a party or by which the Company Parent or any of its Subsidiaries is boundbound (other than any such Default or default relating to any Indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such Indebtedness, and the granting of Liens on the deposited funds in connection therewith);
(f6) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by them with the Company intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other of their creditors of the Company or others; and
(g7) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to in, in the Legal Defeasance or case of the Covenant DefeasanceOfficer’s Certificate, clauses (1) through (6), as applicable, and, in the case may beof the Opinion of Counsel, clauses (2), if applicable, and/or (3) and (5) of this Section 8.03 have been complied with.
Appears in 1 contract
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance pursuant to Section 8.02 8.02(b) or 8.03 Covenant Defeasance pursuant to the outstanding Notes:Section 8.02(c):
(a) the Company Holdings must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. dollars or United States Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes Securities on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any the applicable redemption date established pursuant to this Indenturedate, as the case may be;
(b) in the case of Legal Defeasancean election under Section 8.02(b), the Company Holdings shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Company (A) Holdings has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 8.02(c), the Company Holdings shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming 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 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 shall have occurred and be continuing with respect to the Notes 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 a result Sections 6.01(g) and 6.01(h) are concerned, at any time in the period ending on the 91st day after the date of borrowing funds in connection with such defeasance or granting of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, of or constitute a default Default under this Indenture or any other material agreement, other than this Indenture, agreement or instrument to which the Company Holdings or any of its Restricted Subsidiaries is a party or by which the Company Holdings or any of its Restricted Subsidiaries is bound;
(f) the Company Holdings shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by Holdings with the Company intent of preferring the Holders over any other creditors of Holdings or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company Holdings or others; and;
(g) the Company Holdings shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with; and
(h) Holdings shall have delivered to the Trustee an Opinion of Counsel to the effect that assuming no intervening bankruptcy or insolvency of Holdings between the date of deposit and the 91st day following the deposit and that no Holder is an insider of Holdings, as after the case may be91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) above need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (x) have become due and payable, (y) will become due and payable on the Final Maturity Date within one year or (z) 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 Holdings.
Appears in 1 contract
Samples: Indenture (WTNH Broadcasting Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 12.02 or 8.03 Section 12.03 to the outstanding Notes:
(ai) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, trust for the benefit of the Holders holders of the Notes, cash in U.S. Legal Tender, U.S. legal tender or Government Securities, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, the outstanding such Notes on each the stated maturity date on which such principalor applicable redemption date, as the case may be, thereof, and any premium and the holders of the Notes must have a valid, perfected, exclusive security interest is due and payable or on any redemption date established pursuant to this Indenturein such trust;
(bii) in the case of Legal Defeasancean election under Section 12.02, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenturehereof, 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(ciii) in the case of Covenant Defeasancean election under Section 12.03, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the effect such Trustee confirming 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 Covenant Defeasance and will be subject to U.S. federal income tax on in the same amountsamount, 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 or Event of Default (or event that, after notice or lapse of time, or both, would become an Event of Default) shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than or, in so far as a result Section 6.01(g) or 6.01(h) is concerned, at any time between the date of borrowing such deposit and the 91st day after the date of such deposit, and the Company shall have delivered to the Trustee an Opinion of Counsel, subject to such qualifications and exceptions as the Trustee deems appropriate, to the effect that, assuming no intervening bankruptcy of the Company between the date of such deposit and the 91st day following the date of such deposit and that no holder of the Notes is an insider of the Company, after the 91st day following the date of such deposit the trust funds in connection with such defeasance will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or granting of Liens in connection therewith)similar laws affecting creditors rights generally;
(ev) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under under, this Indenture or any other material agreement, other than this Indenture, 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;
(fvi) the Company shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit made by the Company pursuant to its election under Section 12.02 or 12.03 and was not made by the Company with the intent of preferring the holders of such Notes over other creditors of the Company or any of its Subsidiaries or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or any of its Subsidiaries or others; and
(gvii) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating in, in the case of the Officers' Certificate, clauses (i) through (vi) of this Section 12.04 and, in the case of the Opinion of Counsel, clauses (i) (with respect to the validity and perfection of the security interest) and (v) of this Section 12.04 have been complied with as contemplated by this Section 12.04. If the funds deposited with the Trustee to effect Legal Defeasance or Covenant Defeasance are insufficient to pay the Covenant Defeasanceprincipal of, and premium, if any, and interest on, the Notes when due or if the transfer of the funds to the Trustee is avoided as a preferential transfer, fraudulent transfer or otherwise, then the case may beobligations of the Company and the Subsidiaries under this Indenture will be revived and no such defeasance will be deemed to have occurred.
Appears in 1 contract
Samples: Indenture (Goldendale Aluminum Co)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Section 8.02 legal defeasance or 8.03 to the outstanding Notescovenant defeasance:
(a1) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust (the “defeasance trust”), specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, non-callable U.S. Government Securities or a combination of cash and non-callable U.S. Government Securities, or a combination thereof (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants of recognized international standing, to pay the principal ofprincipal, premium, if any, and any premium and interest on, on the outstanding Notes on each date the Maturity Date or on which such principalan available Redemption Date, as the case may be, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to the Maturity Date or on any redemption date established pursuant to this Indenture;
that Redemption Date; (b2) in the case of Legal Defeasancelegal defeasance only, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel confirming that that: (a) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, or (b) since the date of this IndentureIssue Date, there has been a change in the applicable U.S. federal income tax law, and (c) based on the ruling obtained under clause (a) or the change in either case tax law referred to the effect that, and based thereon such Opinion of Counsel shall confirm thatunder clause (b), 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 Legal Defeasance legal defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance legal defeasance had not occurred;
; (c3) in the case of Covenant Defeasancecovenant defeasance, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel to the effect confirming 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 Covenant Defeasance 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 covenant defeasance had not occurred;
; (d4) 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 Debt, and, in each case the granting of Liens in connection therewith) with respect to the Notes shall have occurred and be continuing with respect to the Notes on the date of such deposit deposit; (other than as a result of borrowing funds in connection with such 5) legal defeasance or granting of Liens in connection therewith);
(e) such Legal Defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) 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;
; (f6) in the case of legal defeasance only, the Company shall have delivered must deliver to the Trustee an OfficersOpinion of Counsel, subject to customary exceptions and assumptions, to the effect that on the 91st day following the deposit, the defeasance trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws generally affecting creditors’ rights; (7) the Company must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding creditors preferring the Holders of the Company or others; and
(g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be.Notes over
Appears in 1 contract
Samples: Indenture (Pilgrims Pride Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 1202 or 8.03 Section 1203: In order to the outstanding Notesexercise either Legal Defeasance or Covenant Defeasance:
(a1) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderdollars, non-callable U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any the redemption date established pursuant to this Indenturedate, as the case may be;
(b2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that that:
(a) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, or ; or
(b) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners of the 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 Legal Defeasance had not occurred;
(c3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than or insofar as a result Events of borrowing funds Default from bankruptcy or insolvency events are concerned, at any time in connection with such defeasance or granting the period ending on the 91st day after the date of Liens in connection therewith)deposit;
(e5) 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, other than this Indenture, 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;
(f6) the Company shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(g7) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with;
(8) No event or condition shall exist that would prevent the Company from making payments of the principal of, as premium, if any, and interest on the case may beNotes on the date of such deposit on the date of such deposit. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) above with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (1) have become due and payable or (2) will become due and payable on the maturity date within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Xerox Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 1402 or 8.03 to the outstanding Notes1403:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal TenderDollars, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, sufficient (without consideration of any reinvestment of interest) in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountantsaccountants selected by the Issuer and delivered to the Trustee, to pay the principal of, and any premium of and interest onand premium, if any, on the outstanding Outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any redemption date established pursuant to this Indenture;the applicable Redemption Date, as the case may be,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this the 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 Outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners Holders of the outstanding Outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting deposit and the grant of Liens in connection therewithany Lien securing such borrowings);,
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenturethe Indenture and the agreements governing any other Indebtedness being defeased, discharge or instrument replaced) to which the Company Parent Guarantor or any of its Subsidiaries is a party or by which the Company Parent Guarantor or any of its Subsidiaries is bound;,
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel each stating to the effect that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may bein clauses (1) through (6) have been complied with.
Appears in 1 contract
Samples: Eleventh Supplemental Indenture (Weatherford International PLC)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 11.2 or 8.03 Section 11.3 to the then outstanding Notes:
(a1) the Company must Defeasor shall have irrevocably deposit or cause to be deposited in trust (the “Defeasance Trust”), with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, Trustee for the benefit of the Holders holders of the Notes, cash in U.S. Legal Tender, U.S. euro or euro-denominated Government Securities, or a combination thereof (“Funds in Trust”), Obligations in such amounts as, in the aggregate, as will be sufficient, in sufficient for the opinion payment of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium and interest on, the outstanding Notes on each date on which such principal, premium, if any, interest and any premium and interest is due and payable Additional Amounts, if any, on the Notes to redemption or on any redemption date established pursuant to this Indenture;maturity, as the case may be.
(b2) in In the case of Legal Defeasance, (i) the Company shall have delivered to the Trustee an Opinion of Counsel confirming from United States counsel stating that (x) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture, Indenture 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 opinion shall confirm that, the Beneficial Owners holders of the outstanding Outstanding Notes will not recognize gain or loss for United States Federal income tax purposes as a result of such deposit, Legal Defeasance and discharge and will be subject to United States Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, Legal Defeasance and discharge had not occurred, and (ii) the Company shall have delivered to the Trustee an Opinion of Counsel from Swedish counsel stating that holders will not recognize income, gain or loss for U.S. federal income Swedish tax purposes as a result of such Legal Defeasance deposit, defeasance and discharge and will be subject to U.S. federal income tax Swedish taxes on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance deposit, defeasance and discharge had not occurred;.
(c3) in In the case of Covenant Defeasance, (i) the Company shall have delivered to the Trustee an Opinion of Counsel from United States counsel to the effect that the Beneficial Owners holders of the outstanding Outstanding Notes will not recognize gain or loss for United States Federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to United States Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred, and (ii) the Company shall have delivered to the Trustee an Opinion of Counsel from Swedish counsel stating that holders will not recognize income, gain or loss for U.S. federal Sweden Federal income tax or other tax purposes as a result of such Covenant Defeasance deposit and covenant defeasance and will be subject to U.S. federal Sweden Federal income tax and other taxes on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance deposit and covenant defeasance had not occurred;.
(d4) no The Company shall have delivered to the Trustee an Officers’ Certificate to the effect that the Notes, if then listed on any securities exchange, will not be delisted as a result of such deposit.
(5) No Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit or, insofar as Subsections 5.1(7) through (other than as a result 11) is concerned, at any time during the period ending on the 121st day after the date of borrowing funds in connection with such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(6) Such defeasance or granting of Liens in connection therewith);
(e) such Legal Defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under under, any other material agreement, other than this Indenture, agreement or instrument to which the Company is a party or by which the Company it is bound;.
(f7) 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 defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g) the The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the either Legal Defeasance under Section 11.2 or the Covenant Defeasance, Defeasance under Section 11.3 (as the case may be) have been complied with.
(8) Such defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company as defined in the United States Investment Company Act of 1940, as amended, or such trust shall be qualified under such act or exempt from regulation thereunder.
Appears in 1 contract
Samples: Indenture (Stena Ab)
Conditions to Legal Defeasance or Covenant Defeasance. (a) The following shall be the conditions to the application exercise of either the Legal Defeasance option under Section 8.02 or the Covenant Defeasance option under Section 8.03 with respect to the outstanding Notes:
(a1) the Company must irrevocably deposit or cause to be deposited with the U.S. Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tenderdollars, U.S. dollar-denominated Government Securities, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, will as shall be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountantsaccountants without consideration of any reinvestment of interest, to pay the principal of, and any premium premium, if any, and interest on, due on the outstanding Notes on each date the Stated Maturity or on which such principalthe applicable redemption date, as the case may be, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to maturity or on any to a particular redemption date established pursuant to this Indenturedate;
(b2) in the case of Legal Defeasance, the Company shall have has delivered to the Trustee Trustees an Opinion of Counsel confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the date of this IndentureIssue Date, 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, 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 Legal 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 Legal Defeasance had not occurred;
(c3) in the case of Covenant Defeasance, the Company shall have has delivered to the Trustee Trustees an Opinion of Counsel confirming that, subject to customary assumptions and exclusions, the effect 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 Covenant 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 Covenant Defeasance had not occurred;
(d4) no Default in the case of Legal Defeasance or Event of Default shall have occurred and be continuing with respect Covenant Defeasance, the Company must deliver to the Trustees an opinion of counsel qualified to practice in Canada (such counsel acceptable to the Trustees, acting reasonably) or a ruling from the Canada Revenue Agency to the effect that holders of the outstanding Notes on the date of such deposit (shall not recognize income, gain or loss for Canadian federal, provincial or territorial income tax or other than tax purposes as a result of borrowing funds such Legal Defeasance or Covenant Defeasance, as applicable, and shall only be subject to Canadian federal, provincial or territorial income tax and other taxes on the same amounts, in connection with the same manner and at the same times as would have been the case if such defeasance Legal Defeasance or granting of Liens in connection therewith)Covenant Defeasance, as applicable, not occurred;
(e5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) 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;
(f6) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or an Event of Default resulting from the borrowing of 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);
(7) the Company shall have has delivered to the Trustee Trustees an OfficersOpinion of Counsel to the effect that, as of the date of such opinion and subject to customary assumptions and exclusions, including that no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st day following the deposit, the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization of similar laws affecting creditors’ rights generally;
(8) the Company has delivered to the Trustees an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company Company, any Guarantor or others; and;
(g9) the Company shall have has delivered to the Trustee Trustees an Officers’ Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with; and
(10) the Company has delivered irrevocable instructions to the Trustees to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be (which instructions may be contained in the Officer’s Certificate referred to in clause (8) above).
Appears in 1 contract
Samples: Indenture (Iamgold Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, Notes cash in U.S. Legal TenderUnited States dollars, U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm, to pay and discharge the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the Stated Maturity (or the applicable redemption date), if at or prior to electing either Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on which such principalredemption date, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to Stated Maturity or on any to a particular redemption date established pursuant to this Indenturedate);
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States reasonably acceptable to the effect Trustee confirming 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as an Event of Default or Default resulting from the incurrence of Indebtedness or Liens securing such Indebtedness, all or a result portion of borrowing funds in connection with the proceeds of which will be applied to such defeasance or granting of Liens in connection therewithdeposit);
(e) such Legal Defeasance or Covenant Defeasance deposit shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Company, any Subsidiary Guarantor or any Restricted Subsidiary is a party or by which it is bound or if such breach or default would occur, which is not waived as of, or for all purposes, on or after, the Company is bounddate of such deposit;
(f) 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 or any Guarantee over the other creditors of the Company or any Subsidiary Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company Company, any Subsidiary Guarantor or others; and
(g) the Company shall will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Appears in 1 contract
Samples: Indenture (SM Energy Co)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance pursuant to Section 8.02 9.02(b) or 8.03 Covenant Defeasance pursuant to the outstanding Notes:Section 9.02(c):
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. dollars or United States Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes Securities on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any the applicable redemption date established pursuant to this Indenturedate, as the case may be;
(b) in the case of Legal Defeasancean election under Section 9.02(b), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (i) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 9.02(c), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the 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 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 shall have occurred and be continuing with respect to the Notes 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 a result Sections 6.01(f) and 6.01(g) are concerned, at any time in the period ending on the 91st day after the date of borrowing funds in connection with such defeasance or granting of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, of or constitute a default Default under this Indenture or any other material agreement, other than this Indenture, agreement or instrument 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 shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(g) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that assuming no intervening bankruptcy or insolvency of the Company between the date of deposit and the 91st day following the deposit and that no Holder is an insider of the Company, as after the case may be91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally. Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) above need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (x) have become due and payable, (y) will become due and payable on the Final Maturity Date within one year or (z) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Homco Puerto Rico Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or Section 8.03 hereof to the outstanding Notes:
(a) the Company must shall irrevocably deposit or cause to be deposited in trust with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit Trustee freely transferable U.S. dollars or U.S. Government Obligations or any combination of the Holders foregoing, for the payment of principal of and interest on such Notes to maturity or redemption, as the Notes, cash in U.S. Legal Tender, U.S. Government Securities, or case may be;
(b) the Company shall deliver to the Trustee a combination thereof (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion of certificate from a nationally recognized firm of independent certified public accountants, accountants expressing their opinion that the payments of principal and interest when due and without reinvestment will provide cash at such times and in such amounts as will be sufficient to pay the principal of, and interest and any premium and interest onAdditional Amounts when due on all such Notes to maturity or redemption, as the outstanding Notes on each date on which such principal, and any premium and interest is due and payable or on any redemption date established pursuant to this Indenturecase may be;
(bc) in the case of Legal Defeasance, deposit shall not constitute a default under any other material agreement or instrument binding on the Company;
(d) the Company shall have delivered deliver to the Trustee an Opinion of Counsel confirming 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, as amended;
(e) in the event of an election to have Section 8.02 hereof apply to the Notes, the Company shall deliver to the Trustee opinions of independent U.S. and Mexican counsel stating, as appropriate, 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, Indenture there has been a change in the applicable Mexican or U.S. federal income tax law, to the effect, in either case to the effect case, that, and based thereon on such Opinion opinions of Counsel counsel shall confirm that, the Beneficial Owners Holders of the outstanding such Notes will not recognize income, gain or loss for Mexican or U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to Mexican or U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(cf) in the case event of Covenant Defeasancean election to have Section 8.03 hereof apply to the Notes, the Company shall have delivered deliver to the Trustee an Opinion opinions of Counsel U.S. and Mexican counsel to the effect that the Beneficial Owners Holders of the outstanding such 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 Mexican or 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result of borrowing funds in connection with such defeasance or granting of Liens in connection therewith);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, other than this Indenture, or instrument to which the Company is a party or by which the Company is bound;
(f) 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 defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g) the Company shall have delivered delivers to the Trustee an Officers’ ' Certificate and an Opinion opinion of Counsel U.S. counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, defeasance and discharge of such Notes have been complied with as the case may berequired by this Indenture.
Appears in 1 contract
Samples: Indenture (Azteca Holdings Sa De Cv)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 11.2 or 8.03 Section 11.3 to the then outstanding Notes:
(a1) the Company must Defeasor shall have irrevocably deposit or cause to be deposited in trust (the “Defeasance Trust”), with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, Trustee for the benefit of the Holders holders of the Notes, cash in U.S. Legal Tender, U.S. euro or euro-denominated Government Securities, or a combination thereof (“Funds in Trust”), Obligations in such amounts as, in the aggregate, as will be sufficient, in sufficient for the opinion payment of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium and interest on, the outstanding Notes on each date on which such principal, premium, if any, interest and any premium and interest is due and payable Additional Amounts, if any, on the Notes to redemption or on any redemption date established pursuant to this Indenture;maturity, as the case may be.
(b2) in In the case of Legal Defeasance, (i) the Company shall have delivered to the Trustee an Opinion of Counsel confirming from United States counsel stating that (x) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture, Indenture 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 opinion shall confirm that, the Beneficial Owners holders of the outstanding Outstanding Notes will not recognize gain or loss for United States Federal income tax purposes as a result of such deposit, Legal Defeasance and discharge and will be subject to United States Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, Legal Defeasance and discharge had not occurred, and (ii) the Company shall have delivered to the Trustee an Opinion of Counsel from Swedish counsel stating that holders will not recognize income, gain or loss for U.S. federal income Swedish tax purposes as a result of such Legal Defeasance deposit, defeasance and discharge and will be subject to U.S. federal income tax Swedish taxes on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance deposit, defeasance and discharge had not occurred;.
(c3) in In the case of Covenant Defeasance, (i) the Company shall have delivered to the Trustee an Opinion of Counsel from United States counsel to the effect that the Beneficial Owners holders of the outstanding Outstanding Notes will not recognize gain or loss for United States Federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to United States Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred, and (ii) the Company shall have delivered to the Trustee an Opinion of Counsel from Swedish counsel stating that holders will not recognize income, gain or loss for U.S. federal Sweden Federal income tax or other tax purposes as a result of such Covenant Defeasance deposit and covenant defeasance and will be subject to U.S. federal Sweden Federal income tax and other taxes on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance deposit and covenant defeasance had not occurred;.
(d4) no The Company shall have delivered to the Trustee an Officers’ Certificate to the effect that the Notes, if then listed on any securities exchange, will not be delisted as a result of such deposit.
(5) No Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit or, insofar as Subsections 5.1(7) through (other than as a result 11) is concerned, at any time during the period ending on the 121st day after the date of borrowing funds in connection with such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(6) Such defeasance or granting of Liens in connection therewith);
(e) such Legal Defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under under, any other material agreement, other than this Indenture, agreement or instrument to which the Company is a party or by which the Company it is bound;.
(f7) 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 defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g) the The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the either Legal Defeasance under Section 11.2 or the Covenant Defeasance, Defeasance under Section 11.3 (as the case may be) have been complied with.
(8) Such defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company as defined in the Investment Company Act of 1940, as amended, or such trust shall be qualified under such act or exempt from regulation thereunder.
Appears in 1 contract
Samples: Indenture (Stena Ab)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 13.1(b) or 8.03 13.1(c) hereof to the outstanding Notes:
(a1) the Company must Issuers shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuers, to pay the principal of, and any premium of and interest onand premium, if any, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indentureof the Notes;
(b2) in the case of Legal Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company has Issuers have received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) 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 this Opinion of Counsel shall confirm that, that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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;
(c3) in the case of Covenant Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds to be applied to such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in connection with such defeasance or each case, the granting of Liens on the deposited funds in connection therewith);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Parent or any of its Subsidiaries is a party or by which the Company Parent or any of its Subsidiaries is boundbound (other than any such Default or default relating to any Indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such Indebtedness, and the granting of Liens on the deposited funds in connection therewith);
(f6) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by them with the Company intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other of their creditors of the Company or others; and
(g7) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to in, in the Legal Defeasance or case of the Covenant DefeasanceOfficer’s Certificate, clauses (1) through (6), as applicable, and, in the case may beof the Opinion of Counsel, clauses (2), if applicable, and/or (3) and (5) of this Section 13.2 have been complied with.
Appears in 1 contract
Samples: First Supplemental Indenture (Sabra Health Care REIT, Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Notes:
(a) the Company Co-Obligors must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, Notes cash in U.S. Legal TenderUnited States dollars, U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants or a nationally recognized investment banking firm, to pay and discharge the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date on which such principal, and any premium and interest is due and payable the Stated Maturity (or on any redemption date established pursuant after December 15, 2006 (such date being referred to this Indentureas the “Defeasance Redemption Date”), if at or prior to electing either Legal Defeasance or Covenant Defeasance, the Co-Obligors have delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on the Defeasance Redemption Date);
(b) in the case of Legal Defeasance, the Company Co-Obligors shall have delivered to the Trustee an Opinion opinion of Counsel confirming independent counsel in the United States stating that (A) the Company has Co-Obligors have received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion opinion of Counsel independent counsel in the United States 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 Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company Co-Obligors shall have delivered to the Trustee an Opinion opinion of Counsel independent counsel in the United States to the effect 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result any such Default resulting solely from the borrowing of borrowing funds to be applied to the Funds in connection with such defeasance or granting of Liens in connection therewithTrust);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under Default under, this Indenture or any other material agreement, other than this Indenture, agreement or instrument to which the Company Company, Xxxxx Xxxxx GP, any Guarantor or any Restricted Subsidiary is a party or by which any of them is bound (other than any such Default resulting solely from the Company is boundborrowing of funds to be applied to the Funds in Trust);
(f) the Company Co-Obligors shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company Co-Obligors with the intent of preferring the holders of the Notes or any Guarantee over the other creditors of the Company, Xxxxx Xxxxx GP or any Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company Company, Xxxxx Xxxxx GP, any Guarantor or others; and
(g) the Company shall Co-Obligors will have delivered to the Trustee an Officers’ Certificate and an Opinion opinion of Counsel independent counsel, each stating that the Company has complied with all conditions precedent provided for relating to either the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Appears in 1 contract
Samples: Indenture (Duane Reade)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 Section 9.03 to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderlegal tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, will as shall be sufficient, sufficient in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenture;the Redemption Date of the principal or installment of principal of or interest on the Notes,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this Indenturehereof, 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 beneficial owners of the outstanding Notes will shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the Legal 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 Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners beneficial owners of the outstanding Notes will shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute (a) a Default under this Indenture or (b) a default under any other material agreement, other than this Indenture, agreement or instrument to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is bound;bound (other than any such Default or default resulting solely from the borrowing of funds to be applied to such deposit),
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders of the Notes over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officer’s Certificate, clauses (1) through (6) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) and (5) of this paragraph have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the obligations of the Issuer and the obligations of Guarantors under this Indenture shall be revived and no such defeasance shall be deemed to have occurred.
Appears in 1 contract
Samples: Indenture (QVC Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal ofof and interest, if any, and any premium and interest onpremium, if any, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indenture;of the Notes,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners of the 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 Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming 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;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a Default under this Indenture or a default under any other material agreement, other than this Indenture, agreement or instrument to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is bound;bound (other than any such Default or default resulting solely from the borrowing of funds to be applied to such deposit).
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding creditors any other of the Company or others; its creditors, and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to in, in the Legal Defeasance or case of the Covenant DefeasanceOfficers’ Certificate, clauses (1) through (6), as applicable, and, in the case may beof the Opinion of Counsel, clauses (2), if applicable, and/or (3) and (5) of this Section 8.03 have been complied with.
Appears in 1 contract
Samples: Indenture (Cpi Holdco Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a1) the Company must ESH REIT shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by ESH REIT, to pay the principal of, and any premium of and interest onand premium, if any, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indentureof the Notes;
(b2) in the case of Legal Defeasance, the Company ESH REIT shall have delivered to the Trustee an Opinion of Counsel in the United States of America confirming that the Company that:
(a) ESH REIT has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) 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 this Opinion of Counsel shall confirm that, 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 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;
(c3) in the case of Covenant Defeasance, the Company ESH REIT shall have delivered to the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to the effect Trustee confirming that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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 the Covenant Defeasance had not occurred;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds to be applied to such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in connection with such defeasance or each case, the granting of Liens on the deposited funds in connection therewith);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company ESH REIT or any of its Significant Subsidiaries is a party or by which ESH REIT or any of its Significant Subsidiaries is bound (other than any such Default or default relating to any Indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such Indebtedness, and the Company is boundgranting of Liens on the deposited funds in connection therewith);
(f6) the Company ESH REIT shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; and
(g7) the Company ESH REIT shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to in, in the Legal Defeasance or case of the Covenant DefeasanceOfficer’s Certificate, clauses (1) through (6), as applicable, and, in the case may beof the Opinion of Counsel, clauses (2), if applicable, and/or (3) and (5) of this Section 8.03 have been complied with.
Appears in 1 contract
Samples: Indenture (ESH Hospitality, Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a) the Company must shall have irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tender, Tender or U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, amount as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment thereof or on any the applicable redemption date established pursuant to this Indenturedate, as the case may be;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this the 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 Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of borrowing funds in connection Default with respect to the Indenture resulting from the incurrence of Indebtedness all or a portion of which will be used to defease the Notes concurrently with such defeasance incurrence) or granting insofar as Events of Liens Default from bankruptcy or insolvency events are concerned, at any time in connection therewith)the period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under the Indenture (other than as permitted by clause (d) above) or any other material agreement, other than this Indenture, agreement or instrument to which the Company is a party or by which the Company is bound;
(f) the Company shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(g) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with; and
(h) the Company 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 holder of Senior Indebtedness, as including, without limitation, those arising under the case may beIndenture 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.
Appears in 1 contract
Samples: Indenture (Perry-Judds Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 Section 9.03 to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderlegal tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts asas shall be sufficient (without consideration of any reinvestment of interest), in as evidenced by an Officer’s Certificate of the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsIssuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenture;the Redemption Date of the principal or installment of principal of or interest on the Notes,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this Indenturehereof, 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 such outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners Holders of the such 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, other than this Indenture, or instrument to which the Company is a party or by which the Company is bound;
(f5) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders of such Notes over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g6) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officer’s Certificate, clauses (1) through (4) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) of this paragraph have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the obligations of the Issuer and the obligations of Guarantors under this Indenture shall be revived and no such defeasance shall be deemed to have occurred.
Appears in 1 contract
Samples: Indenture (Match Group, Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 9.03 to the outstanding NotesNotes and the Guarantees: In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company Issuers must irrevocably deposit or cause to be deposited with the TrusteeTrustee (or other qualifying trustee), in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal TenderHolders, U.S. legal tender or U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date on which such principal, and any premium and interest is the scheduled due and payable dates or on any redemption date established pursuant the applicable Redemption Date, as the case may be, PROVIDED that the Trustee shall have received an irrevocable written order from the Issuers instructing the Trustee to this Indentureapply such U.S. legal tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes;
(b) in the case of Legal Defeasancean election under Section 9.02, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel acceptable to the Trustee confirming that (i) the Company has Issuers have received from from, or there has been published by, the Internal Revenue Service a ruling, 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 deposit, Legal Defeasance and discharge 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, Legal Defeasance and discharge had not occurred;
(c) in the case of Covenant Defeasancean election under Section 9.03, the Company Issuers 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 income tax purposes as a result of such deposit, Covenant Defeasance and discharge 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, Covenant Defeasance and discharge had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit or insofar as Sections 6.01(f) and 6.01(g) are concerned, at any time in 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 under any Bankruptcy Law (other than as a result it being understood that this condition shall not be deemed to be satisfied until the expiration of borrowing funds in connection with such defeasance or granting of Liens in connection therewithperiod);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under under, this Indenture or any other material agreement, other than this Indenture, 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 Issuers shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(g) the Company Issuers shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with;
(h) the Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect that (i) the trust funds will not be subject to any rights of any holders of Senior Indebtedness of the Issuers or Guarantor Senior Indebtedness of any Guarantor, including, without limitation, those arising under this Indenture, and (ii) assuming no intervening event of the type described in Sections 6.01(f) and 6.01(g) between the date of deposit and the 91st day following the deposit or, if longer, ending on the day following the expiration of the longest preference period under any Bankruptcy Law (it being understood that this condition should not be deemed to be satisfied until the expiration of such period) and further assuming that no Holder is an insider of either of the Issuers, after the 91st day following the deposit or, if longer, ending on the day following the expiration of the longest preference period under any Bankruptcy Law (it being understood that this condition should not be deemed to be satisfied until the expiration of such period), the trust funds will not be subject to the effect of any applicable Bankruptcy Law;
(i) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest for purposes of the TIA with respect to any securities of the Issuers; and
(j) the Issuers shall have delivered to the Trustee an Opinion of Counsel stating that, as a result of such Legal Defeasance or Covenant Defeasance, neither the trust nor the Trustee will be required to register as an investment company under the case may beInvestment Company Act of 1940, as amended.
Appears in 1 contract
Samples: Indenture (Norcross Capital Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a1) the Company must Issuers shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuers, to pay the principal of, and any premium of and interest onand premium, if any, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indentureof the Notes;
(b2) in the case of Legal Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States of America confirming that that:
(a) the Company has Issuers have received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) 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 this Opinion of Counsel shall confirm that, that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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;
(c3) in the case of Covenant Defeasance, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to the effect Trustee confirming that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds to be applied to such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in connection with such defeasance or each case, the granting of Liens on the deposited funds in connection therewith);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Parent or any of its Subsidiaries is a party or by which the Company Parent or any of its Subsidiaries is boundbound (other than any such Default or default relating to any Indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such Indebtedness, and the granting of Liens on the deposited funds in connection therewith);
(f6) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by them with the Company intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other of their creditors of the Company or others; and
(g7) the Company Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to in, in the Legal Defeasance or case of the Covenant DefeasanceOfficer’s Certificate, clauses (1) through (6), as applicable, and, in the case may beof the Opinion of Counsel, clauses (2), if applicable, and/or (3) and (5) of this Section 8.03 have been complied with.
Appears in 1 contract
Conditions to Legal Defeasance or Covenant Defeasance. (a) The following shall be the conditions to the application exercise of either the Legal Defeasance option under Section 8.02 or the Covenant Defeasance option under Section 8.03 with respect to the outstanding Notes:
(a1) the Company must irrevocably deposit or cause to be deposited with the U.S. Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tenderdollars, U.S. dollar-denominated Government Securities, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, will as shall be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountantsaccountants without consideration of any reinvestment of interest, to pay the principal of, and any premium premium, if any, and interest on, due on the outstanding Notes on each date the Stated Maturity or on which such principalthe applicable redemption date, as the case may be, and any premium and interest is due and payable the Company must specify whether the Notes are being defeased to maturity or on any to a particular redemption date established pursuant to this Indenturedate;
(b2) in the case of Legal Defeasance, the Company shall have has delivered to the Trustee Trustees an Opinion of Counsel confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the date of this IndentureIssue Date, 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, 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 Legal 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 Legal Defeasance had not occurred;
(c3) in the case of Covenant Defeasance, the Company shall have has delivered to the Trustee Trustees an Opinion of Counsel confirming that, subject to customary assumptions and exclusions, the effect 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 Covenant 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 Covenant Defeasance had not occurred;
(d4) no Default in the case of Legal Defeasance or Event of Default shall have occurred and be continuing with respect Covenant Defeasance, the Company must deliver to the Trustees an opinion of counsel qualified to practice in Canada (such counsel acceptable to the Trustees, acting reasonably) or a ruling from the Canada Revenue Agency to the effect that holders of the outstanding Notes on the date of such deposit (shall not recognize income, gain or loss for Canadian federal, provincial or territorial income tax or other than tax purposes as a result of borrowing funds such Legal Defeasance or Covenant Defeasance, as applicable, and shall only be subject to Canadian federal, provincial or territorial income tax and other taxes on the same amounts, in connection with the same manner and at the same times as would have been the case had such defeasance Legal Defeasance or granting of Liens in connection therewith)Covenant Defeasance, as applicable, not occurred;
(e5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) 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;
(f6) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or an Event of Default resulting from the borrowing of 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);
(7) the Company shall have has delivered to the Trustee Trustees an OfficersOpinion of Counsel to the effect that, as of the date of such opinion and subject to customary assumptions and exclusions, including that no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st day following the deposit, the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization of similar laws affecting creditors’ rights generally;
(8) the Company has delivered to the Trustees an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company Company, any Guarantor or others; and;
(g9) the Company shall have has delivered to the Trustee Trustees an Officers’ Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with; and
(10) the Company has delivered irrevocable instructions to the Trustees to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be (which instructions may be contained in the Officer’s Certificate referred to in clause (8) above).
Appears in 1 contract
Samples: Indenture (Iamgold Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 Section 9.03 to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, as trust funds, in trust, specifically pledged as security for, and dedicated trust solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderlegal tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts asas shall be sufficient (without consideration of any reinvestment of interest), in as evidenced by an Officer’s Certificate of the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsIssuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenture;the Redemption Date of the principal or installment of principal of or interest on the Notes,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this IndentureIssue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon thereon, such Opinion of Counsel shall confirm that, the Beneficial Owners beneficial owners of the such outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners beneficial owners of the such 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, other than this Indenture, or instrument to which the Company is a party or by which the Company is bound;
(f5) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders of such Notes over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g6) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officer’s Certificate, clauses (1) through (4) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) of this paragraph, have been complied with. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the obligations of the Issuer and the Guarantors under this Indenture shall be revived and no such defeasance shall be deemed to have occurred.
Appears in 1 contract
Samples: Indenture (ANGI Homeservices Inc.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal of, and any premium of and interest on, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenture;the Redemption Date of the principal or installment of principal of or interest on the Notes,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such this 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 Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming 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 the Covenant Defeasance had not occurred;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a Default under this Indenture or a default under any other material agreement, other than this Indenture, agreement or instrument to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is bound;bound (other than any such Default or default resulting solely from the borrowing of funds to be applied to such deposit),
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; , and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasancein, as in the case may beof the Officers’ Certificate, clauses (1) through (6) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) and (5) of this Section 8.03 have been complied with.
Appears in 1 contract
Samples: Indenture (Ply Gem Holdings Inc)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a1) the Company must Issuer shall irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal ofof and accrued interest and premium, and any premium and interest onif any, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any redemption date established pursuant to this Indenturethe Redemption Date of the Notes;
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States of America confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) 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 this Opinion of Counsel shall confirm that, that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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, which Opinion of Counsel must be based upon a ruling of the Internal Revenue Service to the same effect or a change in applicable federal income tax law or related treasury regulations after the date of the Indenture, and
(c) an Opinion of Counsel to the effect that the defeasance trust does not constitute an “investment company” within the meaning of the Investment Company Act of 1940 and, after the passage of 91 days 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;
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to the effect Trustee confirming that the Beneficial Owners of the outstanding Notes Holders and beneficial owners 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds to be applied to such deposit and any similar and simultaneous deposit relating to other indebtedness and, in each case, the granting of liens on the deposited funds in connection with therewith) or insofar as Events of Default due to certain events of bankruptcy, insolvency or reorganization in respect of us are concerned, during the period ending on the 91st day after the date of such defeasance or granting of Liens in connection therewith)deposit;
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is boundbound (other than any such Default or default relating to any indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such indebtedness, and the granting of liens on the deposited funds in connection therewith);
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate stating that the deposit was not made by them with the Company intent of preferring the Holders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other of its creditors of the Company or others; and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating in, in the case of the Officer’s Certificate, clauses (1) through (6), as applicable, and, in the case of the Opinion of Counsel, clauses (2), if applicable, and/or (3) and (5) of this 8.03 have been complied with. In the case of Legal Defeasance, the Issuer will be deemed to have paid and will be discharged from any and all obligations in respect of the Notes on the 91st day after it has made the deposit referred to above, and the provisions of this Indenture will cease to be applicable with respect to the Legal Defeasance Notes (except for, among other matters, certain obligations to register the transfer of or exchange of the Covenant DefeasanceNotes, as to replace stolen, lost or mutilated Notes, to maintain paying agencies and to hold funds for payment in trust) if the case may beabove conditions are fulfilled.
Appears in 1 contract
Samples: Indenture (Sotherly Hotels Lp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Legal Defeasance pursuant to Section 8.02 9.02(b) or 8.03 Covenant Defeasance pursuant to the outstanding Notes:Section 9.02(c):
(ai) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal Tenderdollars, U.S. non-callable United States Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes Securities on each date on which such principal, and any premium and interest is due and payable the stated Final Maturity Date or on any redemption date established pursuant to this Indenturethe applicable Redemption Date, as the case may be;
(bii) in the case of Legal Defeasancean election under Section 9.02(b), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners of the 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 Legal Defeasance had not occurred;
(ciii) in the case of Covenant Defeasancean election under Section 9.02(c), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the 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 or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit or insofar as Events of Default described in Section 6.01(vi) or (other than as a result vii) are concerned, at any time in the period ending on the 91st day after the date of borrowing funds in connection with such defeasance or granting of Liens in connection therewith)deposit;
(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, other than this Indenture, 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;
(fvi) the Company shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and;
(gvii) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant DefeasanceDefeasance have been complied with;
(viii) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that after the 91st day following the deposit, as the case may betrust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally; and
(ix) certain other customary conditions precedent are satisfied. Notwithstanding the foregoing, the Opinion of Counsel required by clause (ii) above with respect to an election under Section 9.02(b) need not be delivered if all Securities not therefore delivered to the Trustee for cancellation (x) have become due and payable, (y) will become due and payable on the maturity date within one year or (z) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Carrols Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 9.02 or 8.03 9.03 to the outstanding NotesNotes and any Guarantees: In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit or cause to be irrevocably deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notes, cash in U.S. Legal TenderHolders, U.S. legal tender or U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date on which such principal, and any premium and interest is the scheduled due and payable dates therefore or on any redemption date established pursuant the applicable Redemption Date, as the case may be, PROVIDED that the Trustee shall have received an irrevocable written order from the Company instructing the Trustee to this Indentureapply such U.S. legal tender or the proceeds of such U.S. government obligations to said payments with respect to the Notes;
(b) in the case of Legal Defeasancean election under Section 9.02, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (i) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling, 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 Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasancean election under Section 9.03, 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 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 shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than or insofar as a result Sections 6.01(f) and 6.01(g) are concerned, at any time in the period ending on the 91st day after the date of borrowing funds in connection with such defeasance or granting of Liens in connection therewith)deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under under, this Indenture or any other material agreement, other than this Indenture, 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 shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; andCompany;
(g) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with;
(h) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that (i) the trust funds will not be subject to any rights of any holders of Senior Indebtedness or Guarantor Senior Indebtedness, including, without limitation, those arising hereunder, and (ii) assuming no intervening event of the type described in Sections 6.01(f) and 6.01(g) and that no Holder is an insider of the Company, after the 91st day following the deposit or, if longer, ending on the day following the expiration of the longest preference period under any Bankruptcy Law (it being understood that this condition should not be deemed to be satisfied until the expiration of such period) the trust funds will not be subject to the effect of any applicable Bankruptcy Law;
(i) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest for purposes of the TIA with respect to any securities of the Company; and
(j) the Company shall have delivered to the Trustee an Opinion of Counsel stating that, as a result of such Legal Defeasance or Covenant Defeasance, neither the trust nor the Trustee will be required to register as an investment company under the case may beInvestment Company Act of 1940, as amended.
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Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions In order to the application exercise either Legal Defeasance under Section 8.02(b) or Covenant Defeasance under Section 8.02(c) with respect to Securities of either Section 8.02 or 8.03 to the outstanding Notesany Series:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the TrusteeTrustee for such Securities, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the Notessuch Securities and any coupons appertaining thereto, cash in U.S. Legal Tender, money or U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal ofof (and premium, if any) and interest, if any, on, and any premium and interest onmandatory sinking fund payments in respect of, the outstanding Notes Securities of such Series and any coupons appertaining thereto on each the stated date for payment thereof or on which such principalthe applicable redemption date, as the case may be, and the Issuer must specify whether such Securities and any premium and interest is due and payable coupons appertaining thereto are being defeased to such stated date for payment or on any to a particular redemption date established pursuant to this Indenturedate;
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee for such Securities an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that that:
(i) the Company Issuer has received from from, or there has been published by, the Internal Revenue Service Service, a ruling, or 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 thatthereon, the Beneficial Owners Holders of the outstanding Notes Securities of such Series and any coupons appertaining thereto will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee for such Securities and any coupons appertaining thereto an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming that the Beneficial Owners Holders of the outstanding Notes such Securities and any coupons appertaining thereto 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;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit shall not result in a breach or violation of, or constitute a default under this Indenture (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under under, any other material agreement, other than this Indenture, agreement or instrument to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is boundbound (other than any such default resulting solely from the borrowing of funds to be applied to such deposit and the grant of any Lien on such deposit in favor of the Trustee and/or the Holders);
(f6) the Company Issuer shall have delivered to the Trustee for such Securities an Officers’ Certificate stating that the deposit was not made by the Company Issuer with the intent of preferring the Holders of such Securities and any coupons appertaining thereto over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding creditors any other of the Company or othersits creditors; and
(g7) the Company Issuer shall have delivered to the Trustee for such Securities an Officers’ Certificate and an Opinion of Counsel each stating Counsel, stating, in the case of the Officers’ Certificate, clauses (1) through (6) of this Section 8.03, as applicable, have been complied with and stating, in the case of the Opinion of Counsel, that the Company has complied with all conditions precedent provided for relating to the Legal Defeasance in clause (2) or the Covenant Defeasance(3), as the case may beapplicable, and clause (5) of this Section 8.03 have been complied with.
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Samples: Indenture (Vantage Drilling (Malaysia) I Sdn. Bhd.)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.2 or 8.03 8.3 to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be irrevocably deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal TenderDollars, non-callable U.S. Government SecuritiesObligations, or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent chartered public accountants, expressed in a written opinion thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay the principal of, and any premium premium, if any, and interest on, on the outstanding Notes on each date the Stated Maturity or on which such principalthe applicable redemption date, as the case may be, and any premium and interest is due and payable the Issuer must specify whether the Notes are being defeased to Stated Maturity or on any to a particular redemption date established pursuant to this Indenturedate;
(b2) in the case of Legal Defeasancelegal defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel confirming stating that (A) the Company Issuer has received from from, or there has been published by, the Internal Revenue Service a ruling, ruling or (B) since the date of this IndentureIssue Date, 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 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 Legal Defeasance legal defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance legal defeasance had not occurred;
(c3) in the case of Covenant Defeasancecovenant defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Beneficial Owners 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 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 covenant defeasance had not occurred;
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default or Event of Default resulting from the borrowing of funds in connection with to be applied to such defeasance deposit or the granting of Liens in connection therewithany Lien to secure such borrowing);
(e5) such Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance shall not result in a breach or violation of, or constitute a default under under, any other material agreement, agreement or instrument (other than this Indenture, or instrument ) to which the Company Issuer is a party or by which the Company Issuer is bound;; and
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
(g) the Company shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel Counsel, each stating to the effect that the Company has complied with all conditions precedent provided for relating to such legal defeasance or covenant defeasance have been satisfied. Notwithstanding the Legal Defeasance foregoing, the Opinion of Counsel required by clause (2) above with respect to a legal defeasance need not to be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable by reason of the mailing of a notice of redemption or otherwise, (y) will become due and payable within one year or (z) are to be called for redemption within one year under arrangements reasonably satisfactory to the Covenant Defeasance, as Trustee for the case may begiving of notice of redemption by the Trustee.
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Samples: Indenture (WillScot Corp)
Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.02(b) or 8.03 8.02(c) hereof to the outstanding Notes:
(a1) the Company Issuer must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, for the benefit of the Holders of the NotesHolders, cash in U.S. Legal Tender, U.S. Government Securities, Obligations or a combination thereof (“Funds in Trust”)thereof, in such amounts as, in the aggregate, as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountantsaccountants selected by the Issuer, to pay the principal of, and any premium of and interest onand premium, if any, on the outstanding Notes on each the stated date on which such principal, and any premium and interest is due and payable for payment or on any the redemption date established pursuant to this Indenture;of the Notes,
(b2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that that:
(a) the Company Issuer has received from from, or there has been published by, by the Internal Revenue Service Service, a ruling, or or
(b) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Beneficial Owners of the 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 Legal Defeasance had not occurred;,
(c3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the effect Trustee confirming 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;,
(d4) no Default or Event of Default shall have occurred and be continuing with respect to the Notes on the date of such deposit (other than as a result Default resulting from the borrowing of borrowing funds in connection with to be applied to such defeasance or granting of Liens in connection therewithdeposit);,
(e5) such the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a Default under this Indenture or a default under any other material agreement, other than this Indenture, agreement or instrument to which the Company Issuer or any of its Subsidiaries is a party or by which the Company Issuer or any of its Subsidiaries is bound;bound (other than any such Default or default resulting solely from the borrowing of funds to be applied to such deposit).
(f6) the Company Issuer shall have delivered to the Trustee an Officers’ ' Certificate stating that the deposit was not made by it with the Company intent of preferring the Holders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding creditors any other of the Company or others; its creditors, and
(g7) the Company Issuer shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel Counsel, each stating that the Company has complied with all conditions precedent provided for relating to in, in the Legal Defeasance or case of the Covenant DefeasanceOfficers' Certificate, clauses (1) through (6), as applicable, and, in the case may beof the Opinion of Counsel, clauses (2), if applicable, and/or (3) and (5) of this Section 8.03 have been complied with.
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