Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes: (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and premium, if any, on the outstanding Notes on the Stated Maturity or on 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; (2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating 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 state that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit; (5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; (6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law; (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 of the Company or others; (8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and (9) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 3 contracts
Samples: Indenture (Cogent Communications Holdings, Inc.), Indenture (Cogent Communications Group Inc), Indenture
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, nonU.S. dollar-callable denominated Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, premium, if any, on and interest and premiuminterest, if any, on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, subject to customary assumptions and exclusions, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Default Liens in connection therewith) shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default underunder the Senior Credit Facilities, or any other material agreement or instrument (other than this Indenture) to which which, the Company or any of its Subsidiaries Guarantor is a party or by which the Company or any Guarantor is bound (other than that resulting from any borrowing of its Subsidiaries is boundfunds to be applied to make the deposit required to effect such Legal Defeasance or Covenant Defeasance and any similar and simultaneous deposit relating to other Indebtedness, and, in each case, the granting of Liens in connection therewith);
(6) the Company must have delivered deliver to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy as of the Company or any Guarantor between the date of deposit such opinion and the 91st day following the deposit subject to customary assumptions and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st day 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, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 547 of Title 11 of the New York Debtor and Creditor LawUnited States Code;
(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 any creditors of the Company or any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9) 8) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicablethe case may be, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 3 contracts
Samples: Indenture (Sabre Corp), Indenture (Sabre Corp), Indenture (Sabre Corp)
Conditions to Legal 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. The Legal Defeasance or Covenant Defeasance may be exercised only if:
(1a) the Company must irrevocably deposit deposits with the Trustee, in trust (the “defeasance trust”), for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants of recognized international standing, to pay the principal ofprincipal, and interest and premium, if any, and interest on the outstanding Notes on the Stated Maturity or on the applicable next available redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a that particular redemption date;
(2b) in the case of Legal Defeasance, the Company shall have delivered delivers to the Trustee an Opinion of Counsel stating 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 Datedate hereof, 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 state will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasance, the Company shall have delivered delivers to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default under Sections 6.01(g) or (h) shall have occurred and be continuing either (a) on with respect to the date of such deposit; or (b) insofar as Events of Default from bankruptcy or insolvency events are concerned, Company at any time in the period ending on the 91st day after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must cash and/or non-callable U.S. Government Securities have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee been deposited in the Company’s name and at the Company’s expense; and
(9) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.defeasance trust;
Appears in 3 contracts
Samples: Indenture (Mci Inc), Indenture (Intermedia Communications Inc), Indenture (Digex Inc/De)
Conditions to Legal 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 8.2 or 8.03 to the outstanding Notes8.3 hereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in Dollars, U.S. dollars, non-callable Government SecuritiesObligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest of and premium, if any, and interest, due on the outstanding Notes issued under this Indenture on the Stated Maturity stated maturity date or on the applicable redemption date, as the case may be, and the Company must specify whether the such Notes are being defeased to maturity or to a particular redemption date;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating that in the United States confirming that, subject to customary assumptions and exclusions;
(aA) the Company has received from, or there has been published by, the United States Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Dateissuance of such Notes, 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 state confirm that, subject to customary assumptions and exclusions, the Holders, in their capacity as Holders of the outstanding Notes 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 in the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating that in the United States confirming that, subject to customary assumptions and exclusions, the Holders, in their capacity as Holders of the outstanding Notes Notes, will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and the granting of Liens in connection therewith) shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under the Credit Facilities or any other material agreement or instrument (other than this Indenture) to which which, the Company or any of its Subsidiaries Guarantor is a party or by which the Company or any of its Subsidiaries Guarantor is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law[reserved];
(7) the Company must deliver shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying delaying, defrauding or defrauding preferring any creditors of the Company or any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9) 8) the Company must deliver shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, Counsel in the United States (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicablethe case may be, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 3 contracts
Samples: Indenture (Versum Materials, Inc.), Indenture (W R Grace & Co), Indenture (GCP Applied Technologies Inc.)
Conditions to Legal 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. In order to exercise Legal Defeasance or Covenant Defeasance:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars, and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and interest interest, Special Interest, if any, and premium, if any, on the outstanding Notes on the Stated Maturity stated date for payment or on the applicable redemption dateRedemption Date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;Redemption Date
(2) in the case of Legal Defeasance, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that 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 ruling; or (b) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will shall be subject to federal income tax on in the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will shall be subject to federal income tax on in the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have has occurred and be continuing either (a) with respect to the Notes on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or insolvency events are concernedviolation of, at or constitute a default under, any time in the period ending on the 91st day after the date Indebtedness incurred under clause (1) of depositPermitted Debt;
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s Officers’ Certificate stating that the such 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;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 3 contracts
Samples: Indenture (Mariner Energy Inc), Indenture (Mariner Energy Inc), Indenture (Mariner Energy Resources, Inc.)
Conditions to Legal 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 13.2 or 8.03 to the outstanding NotesSection 13.3 hereof:
(1a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesSecurities, cash in U.S. dollars, non-callable U.S. Government SecuritiesObligations, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Obligations, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, and interest and premium, if any, on, the Outstanding Securities on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes Securities are being defeased to maturity such stated date for payment or to a particular redemption date;
(2b) in the case of Legal Defeasancean election under Section 13.2 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that confirming that:
(ai) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bii) 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 state will confirm that, the Holders of the outstanding Notes Outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasancean election under Section 13.3 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating confirming that the Holders of the outstanding Notes Outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5e) the deposit must not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(f) such Legal Defeasance or Covenant Defeasance shall must not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7g) 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 preferring the Holders of Securities over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9h) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, set forth in clauses (a) through (f) of this Section 13.4 have been complied with. Notwithstanding ; and
(i) the foregoing, Company must deliver to the Trustee an Opinion of Counsel required by clause (2which Opinion of Counsel may be subject to customary assumptions, qualifications and exclusions) stating that all conditions precedent set forth in clauses (b), (c) and (f) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) Section 13.4 have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companybeen complied with.
Appears in 3 contracts
Samples: Indenture (Rowan Companies Inc), Indenture (Tetra Technologies Inc), Indenture (Tetra Technologies Inc)
Conditions to Legal or Covenant Defeasance. The In order to exercise either of the defeasance options under Section 8.2 (Legal Defeasance and Discharge) or Section 8.3 (Covenant Defeasance) hereof, the Defeasor must comply with the following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notesconditions:
(1a) the Company must irrevocably deposit with the TrusteeTrustee or its designee, in trusttrust (the “Defeasance Trust”), for the benefit of the Holders of the Notes, cash in U.S. dollarscash, non-callable Government Securities, or a combination thereof, of cash and non-callable Government Securities (with such cash and government securities) denominated in such euros and U.S. dollars in amounts corresponding to the obligations under the Euro Notes and the Dollar Notes) in amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premium, if any, on on, the outstanding Notes on the Stated Maturity or on the applicable redemption date, as the case may be, and the Company Defeasor must specify whether the Notes are being defeased to maturity or to a particular redemption date;
(2b) in the case of Legal Defeasance, the Company Defeasor shall have delivered to the Trustee (1) an Opinion opinion of Counsel stating U.S. counsel addressed to and reasonably acceptable to the Trustee confirming that (ai) the Company Defeasor has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or (bii) since the Issue 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 state will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for 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; and (iii) payments to and payments from the defeasance trust can be made free and exempt from any and all withholding and other taxes or whatever nature imposed or levied by or on behalf of the United Kingdom or any taxing authority thereof;
(3c) in the case of Covenant Defeasance, the Company Defeasor shall have delivered to the Trustee an Opinion of Counsel stating in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit in the Defeasance Trust (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company Parent or any of its Subsidiaries other Guarantor is a party or by which the Company Parent or any of its Subsidiaries other Guarantor is bound;
(6f) the Company must Defeasor and the Parent shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditorsOfficers’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company Issuer or any Guarantor with the intent of preferring the Holders of Notes over the other creditors of the Defeasor or any Guarantor or with the intent of defeating, hindering, delaying or defrauding any creditors of the Company Defeasor or any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9g) the Company must deliver Defeasor and the Parent shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 3 contracts
Samples: Indenture (CEDC Finance Corp LLC), Indenture (CEDC Finance Corp LLC), Indenture (CEDC Finance Corp LLC)
Conditions to Legal 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 13.2 or 8.03 to the outstanding NotesSection 13.3 hereof:
(1a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesSecurities, cash in U.S. dollars, non-callable U.S. Government SecuritiesObligations, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Obligations, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, and interest and premium, if any, on, the Outstanding Securities on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes Securities are being defeased to maturity such stated date for payment or to a particular redemption date;
(2b) in the case of Legal Defeasancean election under Section 13.2 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that that:
(ai) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bii) 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 will state that, the Holders of the outstanding Notes Outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasancean election under Section 13.3 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that the Holders of the outstanding Notes Outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5e) the deposit must not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(f) such Legal Defeasance or Covenant Defeasance shall must not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7g) 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 preferring the Holders of Securities over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9h) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, set forth in clauses (a) through (f) of this Section 13.4 have been complied with. Notwithstanding ; and
(i) the foregoing, Company must deliver to the Trustee an Opinion of Counsel required by clause (2which Opinion of Counsel may be subject to customary assumptions, qualifications and exclusions) stating that all conditions precedent set forth in clauses (b), (c) and (f) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) Section 13.4 have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companybeen complied with.
Appears in 3 contracts
Samples: Indenture (TODCO Mexico Inc.), Indenture (TODCO Mexico Inc.), Indenture (El Paso Pipeline Partners Operating Company, L.L.C.)
Conditions to Legal or Covenant Defeasance. The following shall be are the conditions precedent to the application of either Section 8.02 8.2 or 8.03 8.3 hereof to the outstanding Notes: In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government SecuritiesObligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest on the outstanding Notes on the Stated Maturity stated date for payment thereof or on 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;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel stating that 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 ruling; or
(b) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel stating counsel in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events an Event of Default resulting from bankruptcy or insolvency events are concerned, at any time the borrowing of funds to fund the deposit referred to in the period ending on the 91st day after the date of depositclause (1) above);
(5) 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 an Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings), the Credit Agreement or any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s 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;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver shall have delivered to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph above with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x1) have become due and payable or (y2) will become due and payable at their Stated Maturity 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 3 contracts
Samples: Indenture (Dole Food Co Inc), Indenture (Dole Food Co Inc), Indenture (Dole Food Company Inc)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesSecurities of a Series, cash in U.S. dollarssuch currency, currencies or currency units in which such Securities are then specified as payable at Stated Maturity, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest on the outstanding Notes Securities of such Series on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes Securities of such Series are being defeased to maturity or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating that in the United States reasonably acceptable to the Trustee confirming that:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default with respect to Securities of such Series shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default with respect to Securities of such Series resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) with respect to such Securities to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Securities of such Series over the other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 3 contracts
Samples: Indenture (Corrections Corp of America), Indenture (Corrections Corp of America), Indenture (CCA Western Properties, Inc.)
Conditions to Legal or Covenant Defeasance. (a) The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Notes:
(1i) the Company must irrevocably deposit or cause to be deposited with the Trustee, as trust funds in trust, for specifically pledged as security for, and dedicated solely to, the benefit of the Holders Holders, money in an amount, or U.S. Government Obligations that through the scheduled payment of the Notes, cash principal and interest thereon will provide money in U.S. dollars, non-callable Government Securitiesan amount, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge the principal ofof (and premium, if any, on) and interest and premiumLiquidated Damages, if any, on the outstanding Notes on the Stated Maturity at maturity (or on the applicable redemption dateupon redemption, as the case may be, and the Company must specify whether the Notes are being defeased to maturity if applicable) of such principal or to a particular redemption dateinstallment of interest or Liquidated Damages;
(2ii) no Default or Event of Default has occurred and is continuing on the date of such deposit or, insofar as an event of bankruptcy under Section 6.01(viii) is concerned, at any time during the period ending on the 91st day after the date of such deposit;
(iii) such Legal Defeasance or Covenant Defeasance may not result in a breach or violation of, or constitute a default under, this Indenture, the Credit Agreement or any material agreement or instrument to which the Company or any Guarantor is a party or by which it is bound;
(iv) in the case of Legal Defeasance, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (b) ruling, or, since the Issue Closing Date, there has been a change in the applicable federal income tax law, in either case to the effect thateffect, and based thereon such Opinion of Counsel shall state thatopinion must confirm, that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3v) in the case of Covenant Defeasance, the Company shall must have delivered to the Trustee an Opinion of Counsel stating to the effect that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;; and
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6vi) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9) the Company must deliver to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the Legal Defeasance or the Covenant Defeasance, as applicablethe case may be, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Samples: Note Purchase Agreement (Jw Childs Equity Partners Ii Lp), Note Purchase Agreement (Signal Medical Services)
Conditions to Legal 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 13.2 or 8.03 to the outstanding NotesSection 13.3 hereof:
(1a) the Company Partnership must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesSecurities, cash in U.S. dollars, non-callable U.S. Government SecuritiesObligations, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Obligations, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, and interest and premium, if any, on, the Outstanding Securities on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company Partnership must specify whether the Notes Securities are being defeased to maturity such stated date for payment or to a particular redemption date;
(2b) in the case of Legal Defeasancean election under Section 13.2 hereof, the Company shall have delivered Partnership must deliver to the Trustee an Opinion of Counsel stating that confirming that:
(ai) the Company Partnership has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bii) 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 state will confirm that, the Holders of the outstanding Notes Outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasancean election under Section 13.3 hereof, the Company shall have delivered Partnership must deliver to the Trustee an Opinion of Counsel stating confirming that the Holders of the outstanding Notes Outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5e) the deposit must not result in a breach or violation of, or constitute a default under, any other instrument to which the Partnership or any Guarantor is a party or by which the Partnership or any Guarantor is bound;
(f) such Legal Defeasance or Covenant Defeasance shall must not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company Partnership or any of its Subsidiaries is a party or by which the Company Partnership or any of its Subsidiaries is bound;
(6g) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Partnership must deliver to the Trustee an Officer’s 's Certificate stating that the deposit was not made by the Company Partnership with the intent of preferring the Holders of Securities over the other creditors of the Partnership with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company Partnership or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9h) the Company Partnership must deliver to the Trustee an Officer’s 's Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, set forth in clauses (a) through (f) of this Section 13.4 have been complied with. Notwithstanding ; and
(i) the foregoing, Partnership must deliver to the Trustee an Opinion of Counsel required by clause (2which Opinion of Counsel may be subject to customary assumptions, qualifications and exclusions) stating that all conditions precedent set forth in clauses (b), (c) and (f) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) Section 13.4 have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companybeen complied with.
Appears in 2 contracts
Samples: Indenture (Cheniere Energy Partners, L.P.), Indenture (Cheniere Energy Partners, L.P.)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes:
(1a) the Company Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest due on the outstanding Notes on the Stated Maturity stated maturity date or on the applicable redemption dateRedemption Date, as the case may be, of such principal, premium, if any, or interest on such Notes and the Company Issuer must specify whether the such Notes are being defeased to maturity or to a particular redemption dateRedemption Date;
(2b) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions,
(ai) the Company Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling or ruling, or
(bii) since the Issue Dateissuance of the Notes, 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 state confirm that, subject to customary assumptions and exclusions, the Holders holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes purposes, as applicable, 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;
(3c) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Holders Trustee confirming that, subject to customary assumptions and exclusions, the holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to 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;
(4d) no Default or Event (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Default Liens in connection therewith) shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under the Senior Credit Facilities or any other material agreement or instrument (other than this Indenture) to which which, the Company Issuer or any of its Subsidiaries Guarantor is a party or by which the Company Issuer or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of its Subsidiaries is boundLiens in connection therewith);
(6f) the Company must Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy as of the Company or any Guarantor between the date of deposit such opinion and the 91st day following the deposit subject to customary assumptions and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st day 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, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 547 of Title 11 of the New York Debtor and Creditor LawUnited States Code;
(7g) the Company must deliver Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Company Issuer or any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9h) the Company must deliver Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicablethe case may be, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Samples: Indenture (Nuance Communications, Inc.), Indenture (Nuance Communications, Inc.)
Conditions to Legal or Covenant Defeasance. (a) The following shall be the conditions to the application of either Section 8.02 10.2 or 8.03 10.3 hereof to any Securities or any series of Securities, as the outstanding Notescase may be, to be defeased:
(1i) the Company must shall irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesSecurities as to which Legal Defeasance or Covenant Defeasance will occur, cash in U.S. dollarslegal tender, non-callable U.S. Government SecuritiesObligations, or a combination thereof, or other obligations as may be provided as contemplated by Section 3.1(15) with respect to such Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest on such Securities on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption datedate of such principal or installment of principal of, as the case may bepremium, if any, or interest on such Securities, and the Company must specify whether Trustee, for the Notes are being defeased to maturity or to benefit of the Holders of such Securities, has a particular redemption datevalid and perfected security interest in obligations so deposited;
(2ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating that in the United States reasonably acceptable to the Trustee confirming that: (aA) the Company has received from, or there has been published by, by the Internal Revenue Service Service, a ruling or (bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes such Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3iii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating in the United States reasonably acceptable to such Trustee confirming that the Holders of the outstanding Notes such Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4iv) no Default or Event of Default with respect to such Securities shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit) and no Default or insolvency events are concernedEvent of Default under Section 8.1(v) or Section 8.1(vi) occurs, at any time in the period ending on the 91st day after the date of deposit;
(5v) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under any material agreement or instrument (excluding this Indenture) to which the Company Company, the Guarantor or any of its Subsidiaries is a party or by which the Company Company, the Guarantor or any of its Subsidiaries is bound;
(6vi) the Company must shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditorsOfficers’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 preferring the Holders of such Securities over any other creditors of the Company or the Guarantor or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company Company, the Guarantor or others;
(8) if vii) such Legal Defeasance or Covenant Defeasance shall not result in the Notes are to be redeemed prior to their Stated Maturity, trust arising from such deposit constituting an investment company within the Company must deliver to the Trustee irrevocable instructions to redeem all meaning of the Notes on the specified redemption date Investment Company Act of 1940, as amended, unless such trust shall be qualified under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expenseAct or exempt from regulation thereunder; and
(9viii) the Company must deliver shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all the conditions precedent relating provided for in, in the case of the Officers’ Certificate, (i) through (vi) and, in the case of the Opinion of Counsel, clauses (i) (with respect to the Legal Defeasance or validity and perfection of the Covenant Defeasancesecurity interest), as applicable(ii), (iii) and (v) of this paragraph have been complied with. Notwithstanding .
(a) If the foregoingfunds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of, premium, if any, and interest on the Opinion Securities to be so defeased when due, then the obligations of Counsel required by clause (2) of the Company under this paragraph Indenture with respect to a Legal Defeasance need not such Securities will be delivered if all Notes not theretofore delivered revived and no such defeasance will be deemed to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companyoccurred.
Appears in 2 contracts
Samples: Senior Indenture (Mohawk Capital Luxembourg SA), Senior Subordinated Indenture (Mohawk Capital Luxembourg SA)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 8.2 or 8.03 Section 8.3 to the outstanding Notes:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesNotes issued hereunder, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premiumpremium and Additional Interest, if any, on the outstanding Notes issued hereunder on the Stated Maturity stated maturity or on 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;
(2) in the case of Legal Defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel stating 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 Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have has occurred and be is continuing either (a) on the date of such deposit; or deposit (bother than an 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 Events of Default resulting from bankruptcy the borrowing of funds or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries Guarantor is a party or by which the Company or any of its Subsidiaries Guarantor is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s 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 any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of CounselCounsel (which may be subject to certain qualifications), each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion requirements of Counsel required by clause (2) of this paragraph above with respect to a Legal Defeasance need not be delivered complied with if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity 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 2 contracts
Samples: Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.)
Conditions to Legal 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 8.2 or 8.03 to the outstanding Notes8.3 hereof:
(1i) the Company must irrevocably deposit with the Trustee, in trusttrust (the “Defeasance Trust”), for the benefit of the Holders of the NotesHolders, cash in dollars or U.S. dollars, non-callable Government Securities, Obligations or a combination thereof, thereof in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest of and premium, if any, and interest due on the outstanding Notes issued under this Indenture on the Stated Maturity stated maturity date or on the applicable redemption date, as the case may be, and the Company must specify whether the such Notes are being defeased to maturity or to a particular redemption date, provided, that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption; and any deficit as of the date of redemption (any such amount, the “Applicable Premium Deficit”) shall only be required to be deposited with the Trustee on or prior to the date of redemption;
(2ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States stating that that, subject to customary assumptions and exclusions;
(a1) the Company has received from, or there has been published by, the United States Internal Revenue Service a ruling or ruling; or
(b2) since the Issue Dateissuance of such Notes, 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 in the United States shall state confirm that, subject to customary assumptions and exclusions, the Holders and beneficial owners of the outstanding Notes Notes, in their capacity as Holders and beneficial owners of the Notes, will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3iii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States, subject to customary assumptions and exclusions, stating that that, subject to customary assumptions and exclusions, the Holders and beneficial owners of the outstanding Notes Notes, in their capacity as Holders and beneficial owners of the Notes, will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4iv) no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and the granting of Liens in connection therewith) shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5v) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under the Credit Facilities or any other material agreement or instrument (other than this Indenture) to which which, the Company Issuers or any of its Subsidiaries Guarantor is a party or by which the Company Issuers or any of its Subsidiaries Guarantor is bound;
(6vi) the Company must Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 delaying, defrauding or defrauding preferring any creditors of the Company or othersCompany;
(8) if vii) for any redemption that requires the Notes are to be redeemed prior to their Stated Maturitypayment of the Applicable Premium, the Company must deliver Issuers shall have delivered to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory an Officer’s Certificate not less than two Business Days prior to the Trustee for the giving deposit of notice of any Applicable Premium Deficit that (i) sets forth such redemption by the Trustee in the Company’s name Applicable Premium Deficit and at the Company’s expense(ii) confirms that such Applicable Premium Deficit shall be applied toward such redemption; and
(9viii) the Company must deliver Issuers shall have delivered to the Trustee an Officer’s Certificate and an Opinion of CounselCounsel (which Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicablethe case may be, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Samples: Indenture (Ladder Capital Corp), Indenture (Ladder Capital Corp)
Conditions to Legal or Covenant Defeasance. (a) The following shall be the conditions to the application of either Section 8.02 10.2 or 8.03 10.3 hereof to any Securities or any series of Securities, as the outstanding Notescase may be, to be defeased:
(1i) the Company must shall irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesSecurities as to which Legal Defeasance or Covenant Defeasance will occur, cash in U.S. dollarslegal tender, non-callable U.S. Government SecuritiesObligations, or a combination thereof, or other obligations as may be provided as contemplated by Section 3.1(15) with respect to such Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest on such Securities on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption datedate of such principal or installment of principal of, as the case may bepremium, if any, or interest on such Securities, and the Company must specify whether Trustee, for the Notes are being defeased to maturity or to benefit of the Holders of such Securities, has a particular redemption datevalid and perfected security interest in obligations so deposited;
(2ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating that in the United States reasonably acceptable to the Trustee confirming that: (aA) the Company has received from, or there has been published by, by the Internal Revenue Service Service, a ruling or (bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes such Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3iii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating in the United States reasonably acceptable to such Trustee confirming that the Holders of the outstanding Notes such Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4iv) no Default or Event of Default with respect to such Securities shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit) and no Default or insolvency events are concernedEvent of Default under Section 8.1(v) or Section 8.1(vi) occurs, at any time in the period ending on the 91st day after the date of deposit;
(5v) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under any material agreement or instrument (excluding this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6vi) the Company must shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditorsOfficers’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 preferring the Holders of such Securities 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;
(8) if vii) such Legal Defeasance or Covenant Defeasance shall not result in the Notes are to be redeemed prior to their Stated Maturity, trust arising from such deposit constituting an investment company within the Company must deliver to the Trustee irrevocable instructions to redeem all meaning of the Notes on the specified redemption date Investment Company Act of 1940, as amended, unless such trust shall be qualified under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expenseAct or exempt from regulation thereunder; and
(9viii) the Company must deliver shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all the conditions precedent relating provided for in, in the case of the Officers’ Certificate, (i) through (vi) and, in the case of the Opinion of Counsel, clauses (i) (with respect to the Legal Defeasance or validity and perfection of the Covenant Defeasancesecurity interest), as applicable(ii), (iii) and (v) of this paragraph have been complied with. Notwithstanding .
(b) If the foregoingfunds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of, premium, if any, and interest on the Opinion Securities to be so defeased when due, then the obligations of Counsel required by clause (2) of the Company under this paragraph Indenture with respect to a Legal Defeasance need not such Securities will be delivered if all Notes not theretofore delivered revived and no such defeasance will be deemed to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companyoccurred.
Appears in 2 contracts
Samples: Indenture (Mohawk Industries Inc), Indenture (Mohawk Industries Inc)
Conditions to Legal 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 13.2 or 8.03 to the outstanding NotesSection 13.3 hereof:
(1a) the Company Partnership must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesSecurities, cash in U.S. dollars, non-callable U.S. Government SecuritiesObligations, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Obligations, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, and interest and premium, if any, on, the Outstanding Securities on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company Partnership must specify whether the Notes Securities are being defeased to maturity such stated date for payment or to a particular redemption date;
(2b) in the case of Legal Defeasancean election under Section 13.2 hereof, the Company shall have delivered Partnership must deliver to the Trustee an Opinion of Counsel stating that confirming that:
(ai) the Company Partnership has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bii) 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 state will confirm that, the Holders of the outstanding Notes Outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasancean election under Section 13.3 hereof, the Company shall have delivered Partnership must deliver to the Trustee an Opinion of Counsel stating confirming that the Holders of the outstanding Notes Outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5e) the deposit must not result in a breach or violation of, or constitute a default under, any other instrument to which the Partnership or any Guarantor is a party or by which the Partnership or any Guarantor is bound;
(f) such Legal Defeasance or Covenant Defeasance shall must not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company Partnership or any of its Subsidiaries is a party or by which the Company Partnership or any of its Subsidiaries is bound;
(6g) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Partnership must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company Partnership with the intent of preferring the Holders of Securities over the other creditors of the Partnership with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company Partnership or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9h) the Company Partnership must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, set forth in clauses (a) through (f) of this Section 13.4 have been complied with. Notwithstanding ; and
(i) the foregoing, Partnership must deliver to the Trustee an Opinion of Counsel required by clause (2which Opinion of Counsel may be subject to customary assumptions, qualifications and exclusions) stating that all conditions precedent set forth in clauses (b), (c) and (f) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) Section 13.4 have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companybeen complied with.
Appears in 2 contracts
Samples: Indenture (Cheniere Energy Partners, L.P.), Indenture (Cheniere Energy Partners, L.P.)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. United States dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and any interest and premiumon, if any, on the outstanding Outstanding Notes on the Stated Maturity or on 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 datestated date for payment thereof;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating that in the United States reasonably acceptable to the Trustee confirming that:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ba copy of which shall accompany the Opinion of Counsel); or
(B) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) 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;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes being defeased over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(8) if 7) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the TIA (assuming all Notes are to be redeemed prior to their Stated Maturity, in default within the Company must deliver to meaning of such Act);
(8) such Legal Defeasance or Covenant Defeasance shall not result in the Trustee irrevocable instructions to redeem all trust arising from such deposit constituting an investment company within the meaning of the Notes on the specified redemption date Investment Company Act of 1940, as amended, unless such trust shall be registered under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expenseAct or exempt from registration thereunder; and
(9) the Company must deliver to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Samples: Indenture (Medco Health Solutions Inc), Indenture (Medco Health Solutions Inc)
Conditions to Legal 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 10.02 or 8.03 to the outstanding Notes10.03 hereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders holders of the NotesSecurities, cash in U.S. United States dollars, non-callable Government Securities, or a combination thereofof cash in United States dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premium, if any, on, the outstanding Securities on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes Securities are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election pursuant to Section 10.02 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling, or
(bB) since the Issue Date, or the date of issuance of any Additional Security, as the case may be, 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 state will confirm that, the Holders holders of the outstanding Notes Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have has delivered to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds, all or insolvency events are concerneda portion of the proceeds of which will be applied to such deposit, at or the grant of any time in the period ending on the 91st day after the date of depositLien securing any such borrowing);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture, the Securities and the Note Guarantees) to which the Company or any of its Subsidiaries Restricted Subsidiary is a party or by which the Company or any of its Subsidiaries Restricted Subsidiary is bound, unless if such breach or default would occur it is waived as of and for all purposes on or after the date of such Legal Defeasance or Covenant Defeasance;
(6) the Company must shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditorsOfficers’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 preferring the holders of Securities over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or any Subsidiary Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicablethe case may be, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Samples: Indenture (Eclipse Resources Corp), Indenture (Eclipse Resources Corp)
Conditions to Legal or Covenant Defeasance. (a) The following shall be the conditions to the application of either Section 8.02 10.2 or 8.03 10.3 hereof to any Securities or any series of Securities, as the outstanding Notescase may be, to be defeased:
(1i) the Company must shall irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesSecurities as to which Legal Defeasance or Covenant Defeasance will occur, cash in U.S. dollarslegal tender, non-callable U.S. Government SecuritiesObligations, or a combination thereof, or other obligations as may be provided as contemplated by Section 3.1(15) with respect to such Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest on such Securities on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption datedate of such principal or installment of principal of, as the case may bepremium, if any, or interest on such Securities, and the Company must specify whether Trustee, for the Notes are being defeased to maturity or to benefit of the Holders of such Securities, has a particular redemption datevalid and perfected security interest in obligations so deposited;
(2ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating that in the United States reasonably acceptable to the Trustee confirming that: (aA) the Company has received from, or there has been published by, by the Internal Revenue Service Service, a ruling or (bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes such Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3iii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating in the United States reasonably acceptable to such Trustee confirming that the Holders of the outstanding Notes such Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4iv) no Default or Event of Default with respect to such Securities shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit) and no Default or insolvency events are concernedEvent of Default under Section 8.1(v) or Section 8.1(vi) occurs, at any time in the period ending on the 91st day after the date of deposit;
(5v) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under any material agreement or instrument (excluding this Indenture) to which the Company Company, the Guarantor or any of its Subsidiaries is a party or by which the Company Company, the Guarantor or any of its Subsidiaries is bound;
(6vi) the Company must shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditorsOfficers’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 preferring the Holders of such Securities over any other creditors of the Company or the Guarantor or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company Company, the Guarantor or others;
(8) if vii) such Legal Defeasance or Covenant Defeasance shall not result in the Notes are to be redeemed prior to their Stated Maturity, trust arising from such deposit constituting an investment company within the Company must deliver to the Trustee irrevocable instructions to redeem all meaning of the Notes on the specified redemption date Investment Company Act of 1940, as amended, unless such trust shall be qualified under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expenseAct or exempt from regulation thereunder; and
(9viii) the Company must deliver shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all the conditions precedent relating provided for in, in the case of the Officers’ Certificate, (i) through (vi) and, in the case of the Opinion of Counsel, clauses (i) (with respect to the Legal Defeasance or validity and perfection of the Covenant Defeasancesecurity interest), as applicable(ii), (iii) and (v) of this paragraph have been complied with. Notwithstanding .
(b) If the foregoingfunds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of, premium, if any, and interest on the Opinion Securities to be so defeased when due, then the obligations of Counsel required by clause (2) of the Company under this paragraph Indenture with respect to a Legal Defeasance need not such Securities will be delivered if all Notes not theretofore delivered revived and no such defeasance will be deemed to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companyoccurred.
Appears in 2 contracts
Samples: Senior Subordinated Indenture (Mohawk Capital Luxembourg SA), Senior Indenture (Mohawk Capital Luxembourg SA)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions In order to the application exercise either Legal Defeasance or Covenant Defeasance with respect to any series of Securities under either Section 8.02 13.2 or 8.03 to the outstanding NotesSection 13.3 hereof:
(1a) the Company Partnership must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesSecurities of such series, cash in U.S. dollars, non-callable U.S. Government SecuritiesObligations, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Obligations, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, and interest and premium, if any, on, the Outstanding Securities of such series on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption dateRedemption Date, as the case may be, and the Company Partnership must specify whether the Notes Securities are being defeased to maturity such stated date for payment or to a particular redemption dateRedemption Date;
(2b) in the case of Legal Defeasancean election under Section 13.2 hereof, the Company shall have delivered Partnership must deliver to the Trustee an Opinion of Counsel stating that that:
(ai) the Company Partnership has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bii) since the Issue 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 state that, the 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;
(3c) in the case of Covenant Defeasancean election under Section 13.3 hereof, the Company shall have delivered Partnership must deliver to the Trustee an Opinion of Counsel stating that the 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;
(4d) no Default or Event of Default with respect to such series of Securities shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5e) the deposit must not result in a breach or violation of, or constitute a default under, any other instrument to which the Partnership or any Guarantor is a party or by which the Partnership or any Guarantor is bound;
(f) such Legal Defeasance or Covenant Defeasance shall must not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company Partnership or any of its Subsidiaries is a party or by which the Company Partnership or any of its Subsidiaries is bound;
(6g) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Partnership must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company Partnership with the intent of preferring the Holders of such Securities over the other creditors of the Partnership with the intent of defeating, hindering, delaying or defrauding any creditors of the Company Partnership or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9h) the Company Partnership must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, set forth in clauses (a) through (f) of this Section 13.4 have been complied with. Notwithstanding ; and
(i) the foregoing, Partnership must deliver to the Trustee an Opinion of Counsel required by clause (2which Opinion of Counsel may be subject to customary assumptions, qualifications and exclusions) stating that all conditions precedent set forth in clauses (b), (c) and (f) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) Section 13.4 have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companybeen complied with.
Appears in 2 contracts
Samples: Indenture (Sanchez Production Partners LP), Indenture (Sanchez Production Partners LP)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1a) the The Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government SecuritiesU.S. government obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest on the outstanding Notes on the Stated Maturity stated maturity or on the applicable optional 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;
(2b) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that in the United States reasonably acceptable to the Trustee confirming that:
(a1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or law;
(b2) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance Defeasance, and will be subject to 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 Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating Counsel, subject to customary assumptions and exceptions, reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time a failure to comply with Section 4.09 as a result of the borrowing of the funds required to effect such deposit and the granting of Liens in the period ending on the 91st day after the date of depositconnection therewith);
(5e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7f) the Company must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by them with the Company intent of preferring the Holders of the Notes over any of the Company’s other creditors or with the intent of defeating, hindering, delaying or defrauding any of their other creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9g) the Company must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance relating to the Notes have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Samples: Indenture (Six Flags Entertainment Corp), Indenture (Six Flags Entertainment Corp)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions (a) In order to the application of exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 to the outstanding Noteshereof:
(1i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountantsaccountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, on the outstanding Notes issued hereunder on the Stated Maturity or on the applicable redemption date, as the case may be, and the Company must specify whether the such Notes are being defeased to maturity or to a particular redemption date;
(2ii) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating 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 state will confirm that, the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3iii) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4iv) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default from bankruptcy resulting from, or insolvency events are concernedarising in connection with, at the borrowing of funds to be applied to such deposit and the grant of any time in the period ending on the 91st day after the date of depositLien securing such borrowing);
(5v) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries Guarantor is a party or by which the Company or any of its Subsidiaries Guarantor is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7vi) the Company must deliver to the Trustee an Officer’s Officers' Certificate stating that the deposit referred to in clause (i) was not made by the Company with the intent of preferring the Holders over the other creditors of the Company or any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9vii) the Company must deliver to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance of the Notes have been complied with. .
(b) Notwithstanding the foregoing, the Opinion of Counsel required by clause clauses (2a)(ii) of this paragraph and (a)(iii) above with respect to a Legal Defeasance or a Covenant Defeasance, as applicable, need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity 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.
(c) Upon satisfaction of the conditions set forth herein and upon the request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
Appears in 2 contracts
Samples: Indenture (Sensata Technologies Holding PLC), Indenture (Sensata Technologies Holding PLC)
Conditions to Legal 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:
(1a) the (i) The Company must shall irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollarslegal tender, non-callable U.S. Government Securities, Obligations or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest (and Liquidated Damages, if any) on the outstanding such Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption datedate of such principal or installment of principal of, as the case may bepremium, if any, or interest (and Liquidated Damages, if any) on such Notes, and the Company Trustee must specify whether have, for the Notes are being defeased to maturity or to benefit of the Holders of Notes, a particular redemption date;
valid, perfected, exclusive security interest in such trust; (2ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel stating that counsel in the United States reasonably acceptable to the Trustee confirming that: (aA) the Company has received from, or there has been published by, by the Internal Revenue Service Service, a ruling or (bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion opinion of Counsel counsel shall state confirm that, the Holders of the outstanding such Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
; (3iii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel stating counsel in the United States reasonably acceptable to such Trustee confirming that the Holders of the outstanding such Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
; (4iv) no Default or Event of Default (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) shall have occurred and be continuing either (a) on the date of such deposit; deposit or (b) 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 deposit;
; (5v) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under this Indenture (other than a Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing) or any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
; (6vi) the Company must shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of such Notes 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 (8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9vii) the Company must deliver shall have delivered to the Trustee an Officer’s Officers' Certificate and an Opinion opinion of Counselcounsel, each stating that all the conditions precedent relating provided for in, in the case of the Officers' Certificate, (i) through (vi) and, in the case of the opinion of counsel, clauses (i) (with respect to the Legal Defeasance or validity and perfection of the Covenant Defeasancesecurity interest), as applicable(ii), have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2iii) and (v) of this paragraph have been complied with respect to a Legal Defeasance need not be delivered if all Notes not theretofore and the Company shall have delivered to the Trustee for cancellation (x) have become due an Officers' Certificate, subject to such qualifications and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory exceptions as the Trustee deems appropriate, to the Trustee for effect that, assuming no Holder of the giving of notice of redemption by the Trustee in the name, and at the expense, Notes is an insider of the Company, the trust funds will not be subject to the effect of any applicable Federal bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally. Any Legal Defeasance or Covenant Defeasance shall be effective on the earlier of (i) the 91st day after the date of such deposit, and (ii) the day on which all of the conditions set forth in this Section 8.4 have been satisfied. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of, premium, if any, and interest (and Liquidated Damages, if any) on the Notes when due, or if any court enters an order directing the repayment of the deposit to the Company or otherwise making the deposit unavailable to make payments under the Notes when due, then (so long as the insufficiency exists or the order remains in effect) the obligations of the Company and the Guarantors under this Indenture will be revived and no such defeasance will be deemed to have occurred.
Appears in 2 contracts
Samples: Indenture (Radiologix Inc), Indenture (Radiologix Inc)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, or interest and interest Special Interest, if any, and premium, if any, on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company Issuers must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) 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 state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or insolvency events are concernedviolation of, at or constitute a default under, any time in other instrument to which the period ending on Issuers or any Guarantor is a party or by which the 91st day after the date of depositIssuers or any Guarantor is bound;
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company Xxxxx Energy Partners or any of its Subsidiaries is a party or by which the Company Xxxxx Energy Partners or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders of Notes over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Company Issuers or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Samples: Indenture (Holly Energy Partners Lp), Indenture (Holly Energy Partners Lp)
Conditions to Legal 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. In order to exercise Legal Defeasance or Covenant Defeasance:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars, and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest interest, Additional Interest, if any, and premium, if any, on the outstanding Notes on the Stated Maturity date of fixed maturity or on the applicable redemption dateRedemption Date, as the case may be, and the Company must specify whether the Notes are being defeased to the date of fixed maturity or to a particular redemption date;Redemption Date
(2) in the case of Legal Defeasance, the Company shall have delivered deliver to the Trustee an Opinion of Counsel stating that 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 ruling; or
(b) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will shall not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will shall be subject to federal income tax on in the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will shall be subject to federal income tax on in the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) 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 (b) insofar as Events of Default from bankruptcy or insolvency events pursuant to clause (9) of Section 6.1 hereof are concerned, at any time in the period ending on the 91st day after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor between the date of deposit and that after the 91st day following the deposit and assuming that no (or, if any Holder or Beneficial Owner of Notes is an “insider” insider of the Company under applicable bankruptcy lawCompany, after the 91st day following the depositsuch later date as counsel may specify in such opinion), the trust funds will shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ ' rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver shall have delivered to the Trustee an Officer’s Officers' Certificate stating that the such 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;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9) 8) the Company must deliver shall have delivered to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes. The Legal Defeasance or Covenant Defeasance may be exercised only if:
(1a) the Company must irrevocably deposit deposits with the Trustee, in trust (the “defeasance trust”), for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be an amount sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal ofprincipal, and interest and premium, if any, and interest on the outstanding Notes on the Stated Maturity or on the applicable next redemption date, as the case may be, and the Company must shall specify whether the Notes are being defeased to maturity or to a such particular redemption date;
(2b) in the case of Legal Defeasance, the Company shall have delivered deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that (ai) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (bii) since subsequent to 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 state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasance, the Company shall have delivered deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default under Section 6.01(e) or (f) shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 depositcash and/or non-callable U.S. Government Securities have been deposited in the defeasance trust;
(5e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries Restricted Subsidiary is a party or by which the Company or any of its Subsidiaries Restricted Subsidiary is bound;
(6f) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must shall deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expenseother creditors; and
(9g) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Samples: Indenture (General Growth Properties, Inc.), Indenture (Rouse Co LP)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions Company may exercise its Legal Defeasance option or its Covenant Defeasance option with respect to the application Outstanding Securities of either Section 8.02 or 8.03 to the outstanding Notesa particular series only if:
(1a) the The Company must shall irrevocably deposit have deposited or caused to be deposited with the TrusteeTrustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article VIII applicable to it) as trust funds in trust for the purpose of making the following payments, in trustspecifically pledged as security for, for and dedicated solely to, the benefit of the Holders of the Notessuch Securities: (i) an amount in such currency, cash currencies or currency unit in U.S. dollarswhich such Securities and any related coupons are then specified as payable at Stated Maturity, or (ii) non-callable U.S. Government SecuritiesObligations that through the scheduled payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (iii) a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountantsaccountants in the United States in the case of U.S. Government Obligations, to pay and discharge, and that shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of, and interest of (and premium, if any) and interest, if any, on the outstanding Notes such Outstanding Securities on the Stated Maturity stated maturity date of such principal and any installment of principal, or on the applicable redemption dateinterest or premium, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a particular redemption dateif any;
(2b) in In the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel stating that confirming that: (ai) the Company has received from, or there has been published by, the Internal Revenue Service a ruling ruling, or (bii) since the Issue Datedate hereof, 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 state confirm that, the Holders beneficial owners of the outstanding Notes Outstanding Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in In the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel stating confirming that the Holders beneficial owners of the outstanding Notes Outstanding Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no No Default or Event of Default with respect to the Securities of such series, other than resulting from the borrowing of funds, or liens related thereto, to be applied to such deposit or similar deposits for other series of securities, shall have occurred and be continuing either (a) on the date of such deposit; or deposit (b) insofar as Events it being understood that this condition shall not be deemed satisfied until the expiration of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of depositsuch period);
(5e) such Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company is bound (other than a breach, violation or any default resulting from the borrowing of its Subsidiaries is bound;
(6) the Company must have delivered funds, or liens related thereto, to the Trustee an Opinion of Counsel be applied to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor between the date of such 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 deposits for other series of the New York Debtor and Creditor Law;
(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 of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expensesecurities); and
(9f) the The Company must deliver shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Samples: Indenture (Southwestern Energy Co), Indenture (A.W. Realty Company, LLC)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. United States dollars, non-callable Government Securities, or a combination thereofof cash in United States dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, premium and interest and premiumSpecial Interest, if any, on and interest on, the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, subject to customary assumptions and exclusions, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have has occurred and be is continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concernedthe borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness), at any time in and the period ending on the 91st day after the date granting of depositLiens to secure such borrowings);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Company or any of its Subsidiaries the Guarantors is a party or by which the Company or any of its Subsidiaries the Guarantors is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s 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;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Samples: Indenture (CPM Holdings, Inc.), Indenture (CPM Holdings, Inc.)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in as determined by the opinion of a nationally recognized firm of independent public accountantsCompany, to pay the principal of, and interest and premium, if any, on and interest on, the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2b) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that confirming that:
(a1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(b2) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders beneficial owners of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating confirming that the Holders beneficial owners of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or insolvency events are concernedviolation of, at or constitute a default under, any time in other instrument to which the period ending on Company is a party or by which the 91st day after the date of depositCompany is bound;
(5e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7f) the Company must deliver to the Trustee an Officer’s Certificate of the Company 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;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9g) the Company must deliver to the Trustee an Officer’s Certificate of the Company and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 2 contracts
Samples: Indenture (Bunge Global SA), Indenture (Bunge Finance Europe B.V.)
Conditions to Legal or Covenant Defeasance. (a) The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes:
(1i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, investment bank or appraisal firm expressed in a written certificate of such firm of independent public accountants, investment bank or appraisal firm to the Trustee, to pay the principal of, and or interest and premiumpremium and Additional Interest, if any, on the outstanding Notes on the Stated Maturity or on 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;
(2ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating 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 state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3iii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4iv) no Default or Event of Default shall have occurred and be continuing either either: (a) on the date of such deposit; or (b) insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st 123rd day after the date of deposit;
(5v) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, under any material agreement or 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;
(6vi) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, that (1) assuming no intervening bankruptcy of the Company or any Guarantor between the date of deposit and the 91st 123rd day following the deposit and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st 123rd 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, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 547 of the New York Debtor United States Bankruptcy Code, and Creditor Law(2) the creation of the defeasance trust does not violate the Investment Company Act of 1940;
(7vii) the Company must deliver to the Trustee an Officer’s 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;
(8) viii) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expensedate; and
(9ix) the Company must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Brown Shoe Co Inc)
Conditions to Legal 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:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesNotes issued hereunder, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premiumpremium and Additional Interest, if any, on the outstanding Notes issued hereunder on the Stated Maturity or on 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;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating 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 Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state will confirm that, the Holders holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; or deposit (b) insofar as Events other than an Event of Default resulting from bankruptcy or insolvency events are concerned, at the borrowing of funds to be applied to such deposit and the grant of any time in the period ending on the 91st day after the date of depositLien securing such borrowings);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, under any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is Guarantor are a party or by which the Company or any of its Subsidiaries Guarantor is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must shall deliver to the Trustee an Officer’s 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 any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must shall deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of CounselCounsel (which may be subject to certain limitations), each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion requirements of Counsel required by clause (2) of this paragraph above with respect to a Legal Defeasance or clause (3) above with respect to a Covenant Defeasance need not be delivered complied with if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity 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 (VWR Funding, Inc.)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes. The Legal Defeasance or Covenant Defeasance may be exercised only if:
(1a) the Company must irrevocably deposit deposits with the Trustee, in trust (the “defeasance trust”), for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be an amount sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal ofprincipal, and interest and premium, if any, and interest on the outstanding Notes on the Stated Maturity or on the applicable next redemption date, as the case may be, and the Company must shall specify whether the Notes are being defeased to maturity or to a such particular redemption date;
(2b) in the case of Legal Defeasance, the Company shall have delivered deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that (ai) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (bii) since subsequent to 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 state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasance, the Company shall have delivered deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and in each case, the granting of Default Liens in connection therewith) shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries Subsidiary that is a Guarantor is a party or by which the Company or any of its Subsidiaries Subsidiary that is a Guarantor is bound;
(6f) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must shall deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expenseother creditors; and
(9g) the Company must shall deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal 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:
(1a) the (i) The Company must shall irrevocably deposit have deposited or caused to be deposited with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollarslegal tender, non-callable U.S. Government SecuritiesObligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest (and Liquidated Damages, if any) on the such outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption datedate of such principal or installment of principal of, as the case may bepremium, if any, or interest (and Liquidated Damages, if any) on such Notes, and the Company Holders of Notes must specify whether the Notes are being defeased to maturity or to have a particular redemption date;
valid, perfected, exclusive security interest in such trust, (2ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel stating counsel in the United States reasonably acceptable to the Trustee confirming that (aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion opinion of Counsel counsel shall state confirm that, the Holders of the such outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
; (3iii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel stating counsel in the United States reasonably acceptable to such Trustee confirming that the Holders of the such outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
; (4iv) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit or (b) 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 deposit;
; (5v) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, under this Indenture or any other material agreement or 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;
; (6vi) the Company must shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of such Notes over the other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding the other creditors of the Company or others;
; and (8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9vii) the Company must deliver shall have delivered to the Trustee an Officer’s Officers' Certificate and an Opinion opinion of Counselcounsel, each stating that all the conditions precedent relating provided for in, in the case of the Officers' Certificate, (i) through (vi) and, in the case of the opinion of counsel, clauses (i) (with respect to the Legal Defeasance or validity and perfection of the Covenant Defeasancesecurity interest), as applicable(ii), (iii) and (v) of this paragraph, have been complied with. Notwithstanding with and the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore Company shall have delivered to the Trustee for cancellation (x) have become due an Officers' Certificate, subject to such qualifications and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory exceptions as the Trustee deems appropriate, to the Trustee for effect that, assuming no Holder of the giving of notice of redemption by the Trustee in the name, and at the expense, Notes is an insider of the Company, the trust funds will not be subject to the effect of any applicable federal bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally. If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of, premium, if any, and interest (and Liquidated Damages, if any) on the Notes when due, then the obligations of the Company and the Guarantors under this Indenture, will be revived and no such defeasance will be deemed to have occurred.
Appears in 1 contract
Conditions to Legal or Covenant Defeasance. The following shall be the conditions (a) In order to the application of exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 to the outstanding Noteshereof:
(1i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, Notes cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountantsaccountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, on the outstanding Notes issued hereunder on the Stated Maturity or on 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;
(2ii) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating 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 U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state will confirm that, the Holders beneficial owners of the outstanding Notes issued hereunder 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;
(3iii) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating confirming that the Holders beneficial owners of the outstanding Notes issued hereunder 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;
(4iv) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default from bankruptcy resulting from, or insolvency events are concernedarising in connection with, at the borrowing of funds to be applied to such deposit and the grant of any time in the period ending on the 91st day after the date of depositLien securing such borrowing);
(5v) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries Guarantor is a party or by which the Company or any of its Subsidiaries Guarantor is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7vi) the Company must deliver to the Trustee an Officer’s Certificate stating that the deposit referred to in clause (i) was not made by the Company with the intent of preferring the Holders of the Notes over the other creditors of the Company or any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9vii) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance of the Notes have been complied with. .
(b) Notwithstanding the foregoing, the Opinion of Counsel required by clause clauses (2a)(ii) of this paragraph and (a)(iii) above with respect to a Legal Defeasance or a Covenant Defeasance, as applicable, need not be delivered if all the Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity 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.
(c) Upon satisfaction of the conditions set forth herein and upon the written request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates, such instrument of acknowledgment to be prepared and delivered to the Trustee by the Company.
Appears in 1 contract
Samples: Indenture (Coty Inc.)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank or firm of independent public accountantsaccountants (if the deposit includes non-callable Government Securities), to pay the principal of, and or interest and premium, if any, on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption dateRedemption Date, as the case may be, and the Company Issuers must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption dateRedemption Date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) 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 state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness) or insolvency events are concerned, at any time in the period ending on the 91st day after the date grant of depositLiens securing such borrowings);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture or any other agreement governing other Indebtedness being defeased, discharged or replaced) to which the Company Antero Midstream Partners or any of its Subsidiaries is a party or by which the Company Antero Midstream Partners or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders of Notes over the other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expenseIssuers; and
(97) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Antero Midstream Corp)
Conditions to Legal 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 11.02 or 8.03 to the outstanding Notes11.03 hereof:
(1) the Company Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficientsuffi- cient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premium, if any, on the outstanding Outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption dateRedemption Date, as the case may be, and the Company Issuers must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption dateRedemption Date;
(2) in the case of Legal Defeasancean election under Section 11.02 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 11.03 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company Regency Energy Partners or any of its Subsidiaries is a party or by which the Company Regency Energy Partners or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders of Notes over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Company Issuers or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Third Supplemental Indenture (Regency Energy Partners LP)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions (a) In order to the application of exercise either Legal Defeasance or Covenant Defeasance under Section 8.02 or Section 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be 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 delivered to the Trustee, to pay the principal of, and interest and premium, if any, on on, and interest, if any, on, the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the such Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that,
(aA) the Company has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or ruling, or
(bB) since the Issue 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 state will confirm that, the Holders 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;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders 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;
(4) no Default or Event of Default shall have has occurred and be is continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concernedthe borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness), at any time in and the period ending on the 91st day after the date granting of depositLiens to secure such borrowings);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s 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;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding The Collateral will be released from the foregoingLien securing the Notes, the Opinion of Counsel required by clause (2) of this paragraph with respect pursuant to Section 13.06, upon a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee Covenant Defeasance in the name, and at the expense, of the Companyaccordance with Article 8.
Appears in 1 contract
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notesseries of Notes being defeased, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities (“Funds in Trust”), in such amounts as will be sufficient, in based on the opinion advice of a nationally recognized firm of independent public accountants, to pay the principal of, and or interest and premium, if any, on on, the outstanding Notes of such series on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the such Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that 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 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 state confirm that, the Holders of the outstanding Notes being defeased will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes being defeased will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time the borrowing of funds to be applied to the Funds in the period ending on the 91st day after the date of depositTrust);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s 's Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Notes being defeased over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s 's Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied withsatisfied. Notwithstanding All of the foregoingCollateral will be released from the Lien securing the Notes, the Opinion of Counsel required by clause (2) of this paragraph with respect to as provided under Section 12.01 hereof, upon a Legal Defeasance need not be delivered if all Notes not theretofore delivered to or Covenant Defeasance in accordance with the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companyprovisions described above.
Appears in 1 contract
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesSecurities of a Series, cash in U.S. dollarssuch currency, currencies or currency units in which such Securities are then specified as payable at Stated Maturity, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest on the outstanding Notes Securities of such Series on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes Securities of such Series are being defeased to maturity or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating that in the United States reasonably acceptable to the Trustee confirming that:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default with respect to Securities of such Series shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default with respect to Securities of such Series resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) with respect to such Securities to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Securities of such Series over the other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal 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. The Legal Defeasance or Covenant Defeasance may be exercised only if:
(1a) the Company must irrevocably deposit deposits with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premiumpremium and Additional Interest, if any, on the outstanding Notes on the Stated Maturity or on 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;
(2b) in the case of Legal Defeasance, the Company shall have delivered delivers to the Trustee an Opinion of Counsel stating 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 Datedate hereof, 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 state will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasance, the Company shall have delivered delivers to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have has occurred and be is continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, under any material agreement or instrument (including, without limitation, the Credit Agreement, but excluding this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries may is bound;
(6f) the Company must have delivered delivers to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditorsOfficers’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 preferring the Holders of Notes over the Company’s other creditors with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expensecreditors or others; and
(9g) the Company must deliver delivers to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Talecris Biotherapeutics Holdings Corp.)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company PES must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and interest interest, premium and premiumAdditional Interest, if any, on on, the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company PES must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election pursuant to Section 8.02 hereof, the Company shall have PES has delivered to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee (asubject to customary exclusions) the Company confirming that:
(A) PES has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) 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 state will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election pursuant to Section 8.03 hereof, the Company shall have PES has delivered to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have has occurred and be is continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit or insolvency events are concerned, at the grant of any time in the period ending on the 91st day after the date of depositLien securing such borrowing);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than the Indenture Documents) to which the Company PES or any of its Subsidiaries is a party or by which the Company PES or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company PES must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by PES with the Company intent of preferring the Holders of Notes over the other creditors of PES or with the intent of defeating, hindering, delaying or defrauding any creditors of the Company PES or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company PES must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal or Covenant Defeasance. The following shall be the conditions In order to the application exercise either Legal Defeasance or Covenant Defeasance under either Sections 8.2 or 8.3 hereof with respect to Securities of either Section 8.02 or 8.03 to the outstanding Notesany Series:
(1) the Company must irrevocably deposit with the TrusteeTrustee for such Securities, in trust, for the benefit of the Holders of the Notessuch Securities, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest on, the outstanding Securities of such Series on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes such Securities are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.2 hereof, the Company shall have delivered must deliver to the Trustee for such Securities an Opinion of Counsel stating that confirming that:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, ; in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.3 hereof, the Company shall have delivered must deliver to the Trustee for such Securities an Opinion of Counsel stating confirming that the Holders of the outstanding Notes such Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default with respect to such Securities shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or insolvency events are concernedviolation of, at or constitute a default under, any time in other instrument to which the period ending on Company or any guarantor of such Securities is a party or by which the 91st day after the date of depositCompany or any such guarantor is bound;
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee for such Securities an Officer’s Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of such Securities over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee for such Securities an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premiumpremium and Liquidated Damages, if any, on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption dateRedemption Date, as the case may be, and the Company Issuers must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption dateRedemption Date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company Regency Energy Partners or any of its Subsidiaries is a party or by which the Company Regency Energy Partners or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders of Notes over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Company Issuers or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal 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 Senior Notes: In order to exercise either Legal Defeasance or Covenant Defeasance:
(1a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. United States dollars, non-callable Government Securities, Obligations or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest and premiumLiquidated Damages, if any, on the outstanding Senior Notes on the Stated Maturity stated maturity date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Senior Notes are being defeased to maturity or to a particular redemption date;
(2b) in the case of Legal Defeasancean election under Section 8.2 hereof, the Company shall have delivered to the Trustee (1) an Opinion of Counsel stating in the United States reasonably acceptable to the Trustee confirming that (aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (bB) since the Issue Datedate 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 state confirm that, the Holders of the outstanding Senior 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;
(3c) in the case of Covenant Defeasancean election under Section 8.3 hereof, the Company shall have delivered to the Trustee (1) an Opinion of Counsel stating in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Senior 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;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (bEvent of Default resulting from the incurrence of Indebtedness all or a portion of the proceeds of which will be used to defease the Senior Notes pursuant to this Article Eight concurrently with such incurrence) or insofar as Events of Default from bankruptcy Sections 6.1(G) or insolvency events are 6.1(H) hereof is concerned, at any time in the period ending on the 91st day after the date of deposit;; 72 72
(5e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6f) the Company must shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 on the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ ' rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7g) the Company must deliver shall have delivered to the Trustee an Officer’s 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;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9h) the Company must deliver shall have delivered to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Oxford Health Plans Inc)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 14.3 or Section 14.4 with respect to the application Debt Securities of either Section 8.02 or 8.03 to the outstanding Notesany such series hereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesDebt Securities of such series, cash in U.S. dollarsthe currency in which such Debt Securities are denominated, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, and interest of and premium, if any, and interest on the outstanding Notes Debt Securities of such series on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes Debt Securities of such series are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 14.3 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that confirming that:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes Debt Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 14.4 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating confirming that the Holders of the outstanding Notes Debt Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default Default, and no event which with the giving of notice, the lapse of time or both would constitute an Event of Default, with respect to the Debt Securities of such series shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 preferring the Holders of the Debt Securities of such series over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Nicolet Bankshares Inc)
Conditions to Legal 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 12.02 or 8.03 12.03 hereof with respect to the outstanding a particular series of Notes:
(1a) the Company Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesNotes of such series, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, and interest and premium, if any, premium on the outstanding Notes of such series on the Stated Maturity or on the applicable redemption dateRedemption Date, as the case may be, and the Company Issuers must specify whether the Notes are being defeased to maturity or to a particular redemption dateRedemption Date;
(2b) in the case of a Legal Defeasance, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that (ai) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or (bii) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasance, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding applicable series of Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at the borrowing of funds to be applied to such deposit and the grant of any time in the period ending on the 91st day after the date of depositLien securing such borrowing);
(5e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company Suburban Propane or any of its Subsidiaries is a party or by which the Company Suburban Propane or any of its Subsidiaries is bound;
(6f) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders of the applicable series of Notes over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding creditors of the Company Issuers or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9g) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with; and
(h) the Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Issuers between the date of deposit and the 91st day following the date of deposit and that no Holder of the applicable series of Notes is an insider of either of the Issuers, after the 91st day following the date of deposit, the trust funds will not be subject to the effect of any applicable federal bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2b) of this paragraph above with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x1) have become due and payable or (y2) will become due and payable at their Stated Maturity on the maturity date within one year year, or are to be called for redemption within one year, under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the CompanyIssuers.
Appears in 1 contract
Conditions to Legal 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 NotesSecurities of any series. In order to exercise Legal Defeasance or Covenant Defeasance with respect to the Securities of any series:
(1a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesSecurities of such series, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, without consideration of any reinvestment of interest, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and interest and Additional Amounts, if any, and premium, if any, on the outstanding Notes Securities of such series on the Stated Maturity stated date for payment or on the applicable redemption dateRedemption Date, as the case may be, and the Company must specify whether the Notes Securities of such series are being defeased to maturity such stated date for payment or to a particular redemption dateRedemption Date;
(2b) in the case of Legal Defeasance, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that 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 ruling; or (b) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state will confirm that, the Holders of the outstanding Notes Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will shall be subject to federal income tax on in 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;
(3c) in the case of Covenant Defeasance, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will Securities of such series shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will shall be subject to federal income tax on in 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;
(4d) no Default or Event of Default shall have has occurred and be is continuing either (a) with respect to the Securities of such series on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7f) the Company must deliver to the Trustee an Officer’s Officers’ Certificate stating that the such deposit was not made by the Company with the intent of preferring the Holders of Securities of such series over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9g) the Company must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the written opinion of a U.S. nationally recognized investment bank, appraisal firm, or firm of independent public accountantsaccountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, on and interest on, the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee (asubject to customary exceptions and exclusions) confirming that:
(A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Date, 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 state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance deposit and defeasance and will be subject to U.S. federal income tax on the same amounts, amounts and 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;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at the borrowing of funds to be applied to such deposit and the grant of any time in the period ending on the 91st day after the date of depositLien securing such borrowing);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered deliver to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy stating that as of the Company or any Guarantor between the date of deposit such opinion and the 91st day following the deposit subject to customary assumptions and assuming that no Holder is an “insider” of the Company under applicable bankruptcy lawexclusions, 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, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 547 of Title 11 of the New York Debtor and Creditor LawUnited States Code, as amended;
(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 preferring the Holders over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9) 8) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Atento S.A.)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Section 8.02 Legal Defeasance or Covenant Defeasance under either Sections 8.03 to the outstanding Notesor 8.04:
(1) the Company Co-Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will shall be sufficient, without consideration of any reinvestment of interest, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and of or interest and premiumpremium and Additional Interest, if any, on the outstanding Notes on the Stated Maturity or on the applicable redemption dateRedemption Date, as the case may be, and the Company Co-Issuers must specify whether the Notes are being defeased to maturity or to a particular redemption dateRedemption Date;
(2) in the case of Legal Defeasancean election under Section 8.03, the Company shall have delivered Co-Issuers must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that (a) the Company has Co-Issuers have received from, or there has been published by, the U.S. Internal Revenue Service a ruling or (b) since the Issue Datedate 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 state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for 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;
(3) in the case of Covenant Defeasancean election under Section 8.04, the Company shall have delivered Co-Issuers must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the 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 Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have has occurred and be is continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default from bankruptcy resulting from, or insolvency events are concernedotherwise arising in connection with, at the borrowing of funds to be applied to such deposit and the grant of any time in the period ending on the 91st day after the date of depositLien securing such borrowing);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company any Co-Issuer or any of its Subsidiaries is a party or by which the Company any Co-Issuer or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Co-Issuers must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by the Company Co-Issuers with the intent of preferring the Holders over the other creditors of the Co-Issuers or any of their Subsidiaries or with the intent of defeating, hindering, delaying or defrauding creditors of the Company Co-Issuers or any of their Subsidiaries or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company Co-Issuers must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating to the effect that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion opinion of Counsel counsel required by clause (2) of this paragraph above with respect to a Legal Defeasance an election under Section 8.03 need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have shall become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements reasonably satisfactory to the Trustee for the giving of a notice of redemption by the Trustee in the name, name and at the expense, expense of the CompanyCo-Issuers. 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 Co-Issuers and the Guarantors under this Indenture will be revived and no such defeasance will be deemed to have occurred.
Appears in 1 contract
Conditions to Legal 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. The Legal Defeasance or Covenant Defeasance may be exercised only if:
(1a) the Company must irrevocably deposit deposits with the Trustee, in trust (the “defeasance trust”), for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofTable of Contents of cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants of recognized international standing, to pay the principal ofprincipal, and interest and premium, if any, and interest on the outstanding Notes on the Stated Maturity or on the applicable next available redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a that particular redemption date;
(2b) in the case of Legal Defeasance, the Company shall have delivered delivers to the Trustee an Opinion of Counsel stating 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 Datedate hereof, 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 state will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasance, the Company shall have delivered delivers to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default under Sections 6.01(g) or (h) shall have occurred and be continuing either (a) on with respect to the date of such deposit; or (b) insofar as Events of Default from bankruptcy or insolvency events are concerned, Company at any time in the period ending on the 91st day after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must cash and/or non-callable U.S. Government Securities have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee been deposited in the Company’s name and at the Company’s expense; and
(9) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.defeasance trust;
Appears in 1 contract
Samples: Indenture (Mci Inc)
Conditions to Legal 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 NotesSecurities and Subsidiary Guarantees: In order to exercise either Legal Defeasance or Covenant Defeasance:
(1a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesSecurities, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and or premium, if any, and interest and Liquidated Damages on the outstanding Notes Securities on the Stated Maturity stated maturity or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes Securities are being defeased to maturity or to a particular redemption date;
(2b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel stating counsel in the United States reasonably acceptable to the Trustee confirming that (aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (bB) since the Issue Datedate hereof, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion opinion of Counsel counsel shall state confirm that, subject to customary assumptions and exclusions, the Holders of the outstanding Notes will Securities shall not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion opinion of Counsel stating that counsel in the United States reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the outstanding Notes will Securities shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will shall be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit (other than a Default or Event of Default resulting from the financing of amounts to be applied to such deposit; ) or (b) 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 deposit;
(5e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6f) the Company must shall have delivered to the Trustee an Opinion opinion of Counsel counsel to the effect that, assuming no intervening bankruptcy subject to customary assumptions and exclusions (which assumptions and exclusions shall not relate to the operation of Section 547 of the Company United States Bankruptcy Code or any Guarantor 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 lawanalogous New York State law provision), after the 91st day following the deposit, the trust funds will shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ ' rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;.
(7g) the Company must deliver shall have delivered to the Trustee an Officer’s Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Securities over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9h) the Company must deliver shall have delivered to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Advance Auto Parts Inc)
Conditions to Legal or Covenant Defeasance. The following shall be In order to exercise either Legal Defeasance or Covenant Defeasance or discharge the conditions to the application of Indenture under either Section 8.02 or 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government SecuritiesObligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountantsaccountants reasonably satisfactory to the Trustee, to pay the principal of, and interest and premiumpremium on, if any, on and interest, if any, on, the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasance, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating 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 Datedate 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 state will 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;
(3) in the case of Covenant Defeasance, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the 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;
(4) no Default or Event of Default shall have has occurred and be is continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concernedthe borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Debt), at any time in and the period ending on the 91st day after the date granting of depositLiens to secure such borrowings);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture and the agreements governing any other Debt being defeased, discharged or replaced) to which the Company or any of its Subsidiaries the Subsidiary Guarantors is a party or by which the Company or any of its Subsidiaries the Subsidiary Guarantors is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 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;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance, the Covenant Defeasance or the Covenant Defeasance, as applicable, discharge have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Hc2 Holdings, Inc.)
Conditions to Legal 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 8.2 or 8.03 8.3 hereof with respect to the outstanding NotesSecurities of any Series:
(1) the Company must irrevocably deposit with the TrusteeTrustee for such Securities, in trust, for the benefit of the Holders of the Notessuch Securities, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest on, the outstanding Securities of such Series on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes such Securities are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.2 hereof, the Company shall have delivered must deliver to the Trustee for such Securities an Opinion of Counsel stating that confirming that:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.3 hereof, the Company shall have delivered must deliver to the Trustee for such Securities an Opinion of Counsel stating confirming that the Holders of the outstanding Notes such Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default with respect to such Securities shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee for such Securities an Officer’s Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of such Securities over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee for such Securities an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Neo Freehold-Gen LLC)
Conditions to Legal 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 NotesNotes and the Note Guarantees: In order to exercise either Legal Defeasance or Covenant Defeasance:
(1i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will shall be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal amount of, and interest and premium, if any, and interest on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that (aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (bB) 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 state confirm that, subject to customary assumptions and exclusions, the Holders of the outstanding Notes will shall not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will shall be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3iii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the outstanding Notes will shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will shall be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5iv) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under any material agreement (including, without limitation, the Congress Credit Facility) or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6v) the Company must shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 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;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9vi) the Company must deliver shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (J Crew Group Inc)
Conditions to Legal 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 9.02 or 8.03 to the outstanding Notes9.03 hereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. United States dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest on the outstanding Notes on the Stated Maturity stated date for payment thereof or on 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;
(2) in the case of Legal Defeasancean election under Section 9.02 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating that in the United States reasonably acceptable to the Trustee confirming that:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 9.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s 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 other creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal or Covenant Defeasance. The following shall be are the conditions precedent to the application of either Section 8.02 8.2 or 8.03 8.3 hereof to the outstanding Notes: In order to exercise either Legal Defeasance or Covenant Defeasance:
(1a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. United States dollars, non-callable U.S. Government Securities, or a combination thereof, thereto in such amounts as will be sufficientsufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountants, to pay the principal or Redemption Price of, and interest and premiumLiquidated Damages, if any, on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption dateRedemption 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;Redemption Date; 76
(2b) in the case of Legal Defeasancean election under Section 8.2 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel stating in the United States reasonably acceptable to the Trustee confirming that (aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, that and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasancean election under Section 8.3 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel stating in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) 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 Section 6.1(g) or (bh) insofar as Events of Default from bankruptcy or insolvency events are hereof is concerned, at any time in the period ending on the 91st ninety-first day after the date of depositdeposit (which condition shall not be deemed satisfied until such ninety-first day);
(5e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6f) the Company must have delivered shall deliver to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 ninety-first 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, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7g) the Company must shall deliver to the Trustee an Officer’s 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 any creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9h) the Company must shall deliver to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that the all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.77
Appears in 1 contract
Samples: Indenture (Commemorative Brands Inc)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions In order to the application of exercise either Section Legal Defeasance or Covenant Defeasance under either Sections 8.02 or 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, (x) cash in U.S. United States dollars, (y) non-callable Government Securities, or (z) a combination thereofof the two, in such amounts as will be sufficient, in the opinion (in the case of clauses (y) and (z)) of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and premium, if any, interest and premiumAdditional Interest, if any, on the outstanding Notes on the Stated Maturity or on 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;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate hereof, there has been a change in the applicable federal income tax law, in either case case, to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s 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 with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (North American Pipe Corp)
Conditions to Legal 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 Outstanding Notes:
(1a) the Company must irrevocably deposit has deposited with the Trustee, in trust, for money and/or U.S. Government Obligations that through the benefit payment of the Holders of the Notes, cash interest and principal (including any PIK Interest) in U.S. dollars, non-callable Government Securities, or a combination thereof, respect thereof in such amounts as accordance with their terms will be sufficient, provide money in the opinion of a nationally recognized firm of independent public accountants, an amount sufficient to pay (i) the principal of, and interest and premium, if any, and accrued interest on the outstanding Notes on when such payments are due in accordance with the Stated Maturity or on the applicable redemption date, as the case may be, terms of this Indenture and the Company must specify whether the Notes are being defeased to maturity or to a particular redemption date;
(2ii) in the case of Legal Defeasance, accrued interest on the Notes through a scheduled Redemption Date and the principal of, and premium on the Notes on such Redemption Date; provided that, at the time of deposit, the Company shall have irrevocably authorizes the Trustee to issue a timely notice of redemption and to take such other steps reasonably requested by the Trustee to ensure that such redemption will be effectuated;
(b) in the case of an election under Section 12.02, the Company has delivered to the Trustee (i) either (x) an Opinion of Counsel stating 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 state that, the that Holders of the outstanding Notes will not recognize income, gain or loss for federal Federal income tax purposes as a result of such Legal Defeasance the exercise by the Company of its option under this Article 12 and will be subject to federal Federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such Legal Defeasance deposit, defeasance and discharge had not occurred, which Opinion of Counsel must be based upon (and accompanied by a copy of) a ruling of the Internal Revenue Service to the same effect unless there has been a change in applicable Federal income tax law after the Issue Date such that a ruling is no longer required or (y) a ruling directed to the Trustee received from the Internal Revenue Service to the same effect as the aforementioned Opinion of Counsel and (ii) an Opinion of Counsel to the effect that, as a result of the creation of the defeasance trust, the Company will not be required to register under the Investment Company Act of 1940 and after the passage of 123 days following the deposit, the trust fund will not be subject to the effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law or any comparable provision of applicable law;
(3c) in the case of Covenant Defeasancean election under Section 12.03, the delivery by the Company shall have delivered to the Trustee of (i) an Opinion of Counsel stating that to the effect that, among other things, the Holders of the outstanding Notes will not recognize income, gain or loss for federal Federal income tax purposes as a result of such Covenant Defeasance deposit and defeasance and will be subject to federal Federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such Covenant Defeasance deposit and defeasance had not occurredoccurred and (ii) an Opinion of Counsel to the effect that, as a result of the creation of the defeasance trust, the Company will not be required to register under the Investment Company Act of 1940 and after the passage of 123 days following the deposit, the trust fund will not be subject to the effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law or any comparable provision of applicable law;
(4d) immediately after giving effect to such deposit on a pro forma basis, no Default or Event of Default Default, or event that after the giving of notice or lapse of time or both would become an Event of Default, shall have occurred and be continuing either (a) on the date of such deposit; deposit or (b) insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in during the period ending on the 91st 123rd day after the date of such deposit;
(5) , and such Legal Defeasance or Covenant Defeasance deposit shall not result in a breach or violation of, or constitute a default under, any material other 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;
(6e) if at such time the Notes are listed on a national securities exchange, the Company must have has delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of that the Company or any Guarantor 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 Notes will not be subject to the effect delisted as a result of any applicable bankruptcysuch deposit, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code defeasance and Section 15 of the New York Debtor and Creditor Lawdischarge;
(7f) the Company must deliver shall have delivered to the Trustee an Officer’s Certificate Certificates stating that the deposit made by the Company pursuant to its election under Sections 12.02 or 12.03 was not made by the Company with the intent of preferring the Holders over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9g) the Company must deliver shall have delivered to the Trustee an Officer’s Certificate Certificates and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the Legal Defeasance under Section 12.02 or the Covenant Defeasance, Defeasance under Section 12.03 (as applicable, the case may be) have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required with as contemplated by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the CompanySection 12.04.
Appears in 1 contract
Samples: Indenture (Eastman Kodak Co)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 Sections 8.2 or 8.03 8.3 to the outstanding Notes:
(1a) the Company must shall irrevocably deposit with the Trustee, in trust, for the benefit of the Holders Holders, (i) cash in United States dollars, (ii) Government Securities which through the payment of interest and principal will provide, no later than one day before the due date of payment in respect of such Notes, cash in U.S. dollarsUnited States dollars in an amount, non-callable Government Securities, or (iii) or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge the principal of, and interest and premium, if any, and interest on the outstanding Notes on the Stated Maturity stated date for payment thereof or on 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;
(2b) in the case of Legal Defeasancean election under Section 8.2, the Company shall have delivered to the Trustee an Opinion of Independent Counsel in the United States stating that (ai) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (bii) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Independent Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasancean election under Section 8.3, the Company shall have delivered to the Trustee an Opinion of Independent Counsel in the United States stating that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit or (b) insofar as Events of Default from bankruptcy Section 6.1(viii) or insolvency events are 6.1(ix) is concerned, at any time in the period ending on the 91st day (or, if such irrevocable deposit may be subject to set aside or avoidance under then applicable bankruptcy or insolvency laws for a period of time longer than 90 days, then one day after the conclusion of such longer period of time) after the date of depositthe irrevocable deposit referred to in Section 8.4(a) (it being agreed and understood that this condition shall not be satisfied until the expiration of such period);
(5e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6f) the Company must shall have delivered to the Trustee an Opinion of Independent Counsel to the effect that, as of the date such opinion, (i) such Legal Defeasance or Covenant Defeasance shall not result in the Company, any Subsidiary Guarantor, the trust arising from the irrevocable deposit referred to in Section 8.4(a) or the Trustee being subject to regulation under, or constituting an investment company within the meaning of, the Investment Company Act of 1940, as amended, and (ii) assuming no intervening bankruptcy of the Company or any Guarantor between the date of deposit and the 91st day following the deposit and assuming that no Holder is an “insider” or if a longer period, the day following the end of such other preference period in effect at the Company under applicable bankruptcy lawtime of such opinion, after the 91st day as applicable, following the deposit, the trust funds irrevocably deposited pursuant to Section 8.4(a) will not be subject to the effect effects of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ ' rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Lawgenerally under any applicable United States or state law;
(7g) the Company must deliver shall have delivered to the Trustee an Officer’s Officers' Certificate stating that the irrevocable deposit referred in Section 8.4(a) was not made by the Company with the intent of preferring the Holders of Notes over any 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;
(8) if the Notes are to be redeemed prior to their Stated Maturity, h) no event or condition shall exist that would prevent the Company must deliver to from making payments of the Trustee irrevocable instructions to redeem all of principal of, or premium, if any, or interest on, the Notes on the specified redemption date under arrangement satisfactory of the irrevocable deposit referred to in Section 8.4(a) or at any time during and ending on the Trustee for 91st day (or such longer period as referred to in Sections 8.4(d) and (f)(ii)) after the giving of notice date of such redemption by the Trustee in the Company’s name and at the Company’s expensedeposit; and
(9i) the Company must deliver shall have delivered to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating which, taken together, state that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Ram Energy Inc/Ok)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized an investment bank, appraisal firm or firm of independent public accountantsaccountants of national standing in the United States or Canada, to pay the principal of, and or interest and premiumpremium and Special Interest, if any, on on, the outstanding Notes on the Stated Maturity or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity such Stated Maturity or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or or; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5) in the case of an election under Section 8.02 or 8.03, the Company must deliver to the Trustee an Opinion of Counsel in Canada to the effect that Holders of the outstanding Notes will not recognize income, gain or loss for Canadian federal or provincial income tax or other tax purposes as a result of such Legal Defeasance or Covenant Defeasance, as applicable, and will be subject to Canadian federal or provincial income tax and other tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance or Covenant Defeasance, as applicable, had not occurred (which condition may not be waived by any Holder or the Trustee);
(6) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9) 8) the Company must deliver to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Riverside Forest Products Marketing LTD)
Conditions to Legal 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. The Legal Defeasance or Covenant Defeasance may be exercised only if:
(1a) the Company must irrevocably deposit deposits with the Trustee, in trust (the "defeasance trust"), for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants of recognized international standing, to pay the principal ofprincipal, and interest and premium, if any, and interest on the outstanding Notes on the Stated Maturity or on the applicable next available redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a that particular redemption date;
(2b) in the case of Legal Defeasance, the Company shall have delivered delivers to the Trustee an Opinion of Counsel stating 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 Datedate hereof, 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 state will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes. Legal Defeasance or Covenant Defeasance may be exercised only if:
(1a) the Company must irrevocably deposit deposits with the Trustee, in trusttrust (the "DEFEASANCE TRUST"), for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be an amount sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and or premium, if any, and interest on the outstanding Notes on the Stated Maturity or on the applicable next redemption date, as the case may be, and the Company must shall specify whether the Notes are being defeased to maturity or to a such particular redemption date;
(2b) in the case of Legal DefeasanceDefeasance under Section 8.02 hereof, the Company shall have delivered deliver to the Trustee an Opinion of Counsel stating to the Trustee confirming that (ai) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (bii) since subsequent to 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 state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant DefeasanceDefeasance under Section 8.03 hereof, the Company shall have delivered deliver to the Trustee an Opinion of Counsel stating to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries Subsidiary is a party or by which the Company or any of its Subsidiaries Subsidiary is bound;
(6f) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must shall deliver to the Trustee an Officer’s Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expenseother creditors; and
(9g) the Company must deliver delivers to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal or Covenant Defeasance. The following shall be are the conditions precedent to the application of either Section 8.02 9.02 or 8.03 9.03 hereof to the outstanding Notes: In order to exercise either Legal Defeasance or Covenant Defeaseance:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal ofprincipal, any premium and interest and premium, if any, on the outstanding Notes on the Stated Maturity stated maturity date or on 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;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating that 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 ruling, or
(b) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default the Company shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s Certificate stating that (a) the Company did not make the deposit was not made by referred to in clause (1) with the Company intent of preferring the holders of Notes over its other creditors or with the intent of defeating, hindering, delaying or defrauding creditors of its other creditors, and (b) the Legal Defeasance or Covenant Defeasance will not result in a breach, violation or constitute a default under any material agreement or instrument, other than this Indenture, to which the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all any of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving its Restricted Subsidiaries is a party or by which it or any of notice of such redemption by the Trustee in the Company’s name and at the Company’s expenseRestricted Subsidiaries is bound; and
(95) the Company must shall deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each Counsel stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal 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 Outstanding Notes:
(1a) the Company must irrevocably deposit has deposited with the Trustee, in trust, for money and/or U.S. Government Obligations that through the benefit payment of the Holders of the Notes, cash interest and principal (including any PIK Interest) in U.S. dollars, non-callable Government Securities, or a combination thereof, respect thereof in such amounts as accordance with their terms will be sufficient, provide money in the opinion of a nationally recognized firm of independent public accountants, an amount sufficient to pay (i) the principal of, and interest and premium, if any, and accrued interest on the outstanding Notes on when such payments are due in accordance with the Stated Maturity or on the applicable redemption date, as the case may be, terms of this Indenture and the Company must specify whether the Notes are being defeased to maturity or to a particular redemption date;
(2ii) in the case of Legal Defeasance, accrued interest on the Notes through a scheduled Redemption Date and the principal of, and premium on the Notes on such Redemption Date; provided that, at the time of deposit, the Company shall have irrevocably authorizes the Trustee to issue a timely notice of redemption and to take such other steps reasonably requested by the Trustee to ensure that such redemption will be effectuated;
(b) in the case of an election under Section 12.02, the Company has delivered to the Trustee (i) either (x) an Opinion of Counsel stating 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 state that, the that Holders of the outstanding Notes will not recognize income, gain or loss for federal Federal income tax purposes as a result of such Legal Defeasance the exercise by the Company of its option under this Article 12 and will be subject to federal Federal income tax on the same amounts, amount and in the same manner and at the same times as would have been the case if such Legal Defeasance deposit, defeasance and discharge had not occurred;
, which Opinion of Counsel must be based upon (3and accompanied by a copy of) a ruling of the Internal Revenue Service to the same effect unless there has been a change in applicable Federal income tax law after the case of Covenant Defeasance, the Company shall have delivered Issue Date such that a ruling is no longer required or (y) a ruling directed to the Trustee an received from the Internal Revenue Service to the same effect as the aforementioned Opinion of Counsel stating that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4ii) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy as a result of the Company or any Guarantor between the date of deposit and the 91st day following the deposit and assuming that no Holder is an “insider” creation of the defeasance trust, the Company will not be required to register under applicable bankruptcy law, the Investment Company Act of 1940 and after the 91st day passage of 123 days following the deposit, the trust funds fund will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.or
Appears in 1 contract
Samples: Indenture (Eastman Kodak Co)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 14.3 or Section 14.4 with respect to the application Debt Securities of either Section 8.02 or 8.03 to the outstanding Notesany such series hereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesDebt Securities of such series, cash in U.S. dollarsthe currency in which such Debt Securities are denominated, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, and interest of and premium, if any, and interest on the outstanding Notes Debt Securities of such series on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes Debt Securities of such series are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 14.3 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that confirming that:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes Debt Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 14.4 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating confirming that the Holders of the outstanding Notes Debt Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default with respect to the Debt Securities of such series shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 preferring the Holders of the Debt Securities of such series over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal 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:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesNotes issued hereunder, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premiumpremium and Additional Interest, if any, on the outstanding Notes issued hereunder on the Stated Maturity or on 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;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating 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 Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state in the United States will confirm that, the Holders holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating in the United States reasonably acceptable to the Trustee confirming that the Holders holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at the borrowing of funds to be applied to such deposit and the grant of any time in the period ending on the 91st day after the date of depositLien securing such borrowings);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, under any material agreement or instrument (other than this Indenture) to which the Company Issuers or any of its Subsidiaries is Guarantor are a party or by which the Company Issuers or any of its Subsidiaries Guarantor is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must shall deliver to the Trustee an Officer’s 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 any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must shall deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of CounselCounsel in the United States, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion requirements of Counsel required by clause (2) of this paragraph above with respect to a Legal Defeasance need not be delivered complied with if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity 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 (Yankee Holding Corp.)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions precedent to the application effectiveness of either Section 8.02 any Legal Defeasance or 8.03 to the outstanding NotesCovenant Defeasance:
(1a) the Company must shall (i) irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, unencumbered cash in U.S. United States dollars, non-callable unencumbered U.S. Government SecuritiesObligations, or a combination thereof, in such amounts as will be sufficient, in the a written opinion of a nationally recognized firm of independent public accountantsaccountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, and interest on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption dateRedemption 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;Redemption Date, and (ii) irrevocably instruct the Trustee to apply such cash and U.S. Government Obligations to such payments with respect to the Notes; 104
(2b) in the case of Legal Defeasancean election under Section 12.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating confirming that (aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasancean election under Section 12.3 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel stating confirming that the Holders of the outstanding Outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had has not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (ai) on the date of such deposit; deposit (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 Notes pursuant to this Article concurrently with such Incurrence) and (bii) insofar as Events of Default from bankruptcy or insolvency events are Section 5.1(g) hereof is concerned, at any time in during the period ending on the 91st day after the date of depositdeposit (such condition not being satisfied until such 91st day);
(5e) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest as defined in Section 6.8 or for purposes of the Trust Indenture Act with respect to any securities of the Company;
(f) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6g) the Company must shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 on the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ ' rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;; 105
(7h) the Company must deliver shall have delivered to the Trustee an Officer’s 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;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9i) no event or condition shall exist that would prevent the Company from making payments of the principal of, premium, if any, and interest on the Outstanding Notes on the date of such deposit
(j) the Company must deliver shall have delivered to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal 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 8.2 or 8.03 to the outstanding Notes8.3 hereof:
(1) the Company Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government SecuritiesObligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest of and premium, if any, interest, due on the outstanding Notes issued under this Indenture on the Stated Maturity stated maturity date or on the applicable redemption date, as the case may be, and the Company Issuer must specify whether the such Notes are being defeased to maturity or to a particular redemption date;
(2) in the case of Legal Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel stating that confirming that, subject to customary assumptions and exclusions;
(aA) the Company Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Dateissuance of such Notes, 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 state confirm that, subject to customary assumptions and exclusions, the Holders, in their capacity as Holders of the outstanding Notes Notes; will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company Issuer shall have delivered to the Trustee an Opinion of Counsel stating that confirming that, subject to customary assumptions and exclusions, the Holders, in their capacity as Holders of the outstanding Notes Notes, will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and the granting of Liens in connection therewith) shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under the Credit Facilities or any other material agreement or instrument (other than this Indenture) to which which, the Company Issuer or any of its Subsidiaries Guarantor is a party or by which the Company Issuer or any of its Subsidiaries Guarantor is bound;
(6) the Company must Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy as of the Company or any Guarantor between the date of deposit such opinion and the 91st day following the deposit subject to customary assumptions and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st day exclusions following the deposit, the trust funds will not be subject to the effect of Sections 547 and 548 of Title 11 of the United States Code, as amended, or any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Lawgenerally under any applicable U.S. federal or state law;
(7) the Company must deliver Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company Issuer with the intent of defeating, hindering, delaying delaying, defrauding or defrauding preferring any creditors of the Company Issuer or any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9) 8) the Company must deliver Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, Counsel in the United States (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicablethe case may be, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notesseries of Notes being defeased, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities (“Funds in Trust”), in such amounts as will be sufficient, in based on the opinion advice of a nationally recognized firm of independent public accountants, to pay the principal of, and or interest and premium, if any, on on, the outstanding Notes of such series on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the such Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that 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 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 state confirm that, the Holders of the outstanding Notes being defeased will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes being defeased will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time the borrowing of funds to be applied to the Funds in the period ending on the 91st day after the date of depositTrust);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s 's Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Notes being defeased over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s 's Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied withsatisfied. Notwithstanding All of the foregoingCollateral will be released from the Lien securing the Notes, the Opinion of Counsel required by clause (2) of this paragraph with respect to as provided under Section 12.03 hereof, upon a Legal Defeasance need not be delivered if all Notes not theretofore delivered to or Covenant Defeasance in accordance with the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companyprovisions described above.
Appears in 1 contract
Conditions to Legal or Covenant Defeasance. The following shall be the conditions (a) In order to the application of exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 to the outstanding Noteshereof:
(1i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be sufficient, in the written opinion of a nationally an internationally recognized firm of independent public accountantsaccountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, on the outstanding Notes issued hereunder on the Stated Maturity or on the applicable redemption date, as the case may be, and the Company must specify whether the such Notes are being defeased to maturity or to a particular redemption date;
(2ii) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating 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 Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state will confirm that, the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3iii) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4iv) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default from bankruptcy resulting from, or insolvency events are concernedarising in connection with, at the borrowing of funds to be applied to such deposit and the grant of any time in the period ending on the 91st day after the date of depositLien securing such borrowing);
(5v) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries Guarantor is a party or by which the Company or any of its Subsidiaries Guarantor is bound;
(6vi) the Company must have delivered deliver to the Trustee an Opinion of Counsel to the effect that, that assuming no intervening bankruptcy of the Company or any Guarantor between the date of deposit and the 91st day following the deposit referred to in clause (i), or if longer, the day immediately following the last day on which the deposit may be set aside as preferential payment under applicable law, and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st such 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, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and the preference provisions of Section 15 547 of the New York Debtor and Creditor LawUnited States Federal Bankruptcy Code;
(7vii) the Company must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit referred to in clause (i) was not made by the Company with the intent of preferring the Holders over the other creditors of the Company or any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9viii) the Company must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance of the Notes have been complied with. .
(b) Notwithstanding the foregoing, the Opinion of Counsel required by clause clauses (2ii) of this paragraph and (iii) above with respect to a Legal Defeasance or a Covenant Defeasance, as applicable, need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity 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.
(c) Upon satisfaction of the conditions set forth herein and upon the request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
Appears in 1 contract
Conditions to Legal 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 or Section 8.03 to the outstanding Noteshereof:
(1a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountantsaccountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, on on, and interest, if any, on, the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2b) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(ai) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bii) since the Issue Datedate 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 state will confirm that, the Holders 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;
(3c) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders 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;
(4d) no Default or Event of Default shall have has occurred and be is continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concernedthe borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness), at any time in and the period ending on the 91st day after the date granting of depositLiens to secure such borrowings);
(5e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7f) the Company must deliver to the Trustee an Officer’s 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;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9g) the Company must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Callon Petroleum Co)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premiumpremium and Liquidated Damages, if any, on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption dateRedemption Date, as the case may be, and the Company Issuers must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption dateRedemption Date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders Hold- ers of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company Regency Energy Partners or any of its Subsidiaries is a party or by which the Company Regency Energy Partners or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders of Notes over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Company Issuers or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesNotes issued hereunder, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and or interest and premiumpremium and Additional Interest, if any, on on, the outstanding Notes issued hereunder on the Stated Maturity stated maturity thereof or on the applicable redemption date, as the case may be, and the Company Issuers must specify whether the Notes are being defeased to such stated maturity or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) 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 state confirm that, subject to customary assumptions and exclusions, the Holders of the respective outstanding Notes will shall not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will shall be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the respective outstanding Notes will shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will shall be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (bEvent of Default resulting from the borrowing of funds to be applied to such deposit and the grant of Liens in connection therewith) or insofar as Events of Default (other than Events of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit and the granting of Liens in connection therewith) resulting from the borrowing of funds or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, under the Credit Agreement or any other material agreement or instrument (other than this Indenture) to which the Company VHS Holdco II or any of its Restricted Subsidiaries is a party or by which the Company VHS Holdco II or any of its Restricted Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders of Notes over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding creditors of the Company Issuers or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, subject to customary assumptions and exclusions, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal or Covenant Defeasance. (a) The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Notes:
(1i) the Company must irrevocably deposit or cause to be deposited with the Trustee, as trust funds in trust, for specifically pledged as security for, and dedicated solely to, the benefit of the Holders Holders, money in an amount, or U.S. Government Obligations that through the scheduled payment of the Notes, cash principal and interest thereon will provide money in U.S. dollars, non-callable Government Securitiesan amount, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge the principal ofof (and premium, if any, on) and interest and premiumLiquidated Damages, if any, on the outstanding Notes on the Stated Maturity at maturity (or on the applicable redemption dateupon redemption, as the case may be, and the Company must specify whether the Notes are being defeased to maturity if applicable) of such principal or to a particular redemption dateinstallment of interest or Liquidated Damages;
(2ii) no Default or Event of Default has occurred and is continuing on the date of such deposit or, insofar as an event of bankruptcy under Section 6.01(viii) is concerned, at any time during the period ending on the 91st day after the date of such deposit;
(iii) such Legal Defeasance or Covenant Defeasance may not result in a breach or violation of, or constitute a default under, this Indenture, the Security Documents, the Credit Agreement or any material agreement or instrument to which the Company or any Guarantor is a party or by which it is bound;
(iv) in the case of Legal Defeasance, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (b) ruling, or, since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect thateffect, and based thereon such Opinion of Counsel shall state thatopinion must confirm, that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3v) in the case of Covenant Defeasance, the Company shall must have delivered to the Trustee an Opinion of Counsel stating to the effect that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;; and
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; or (b) 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 deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6vi) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9) the Company must deliver to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the Legal Defeasance or the Covenant Defeasance, as applicablethe case may be, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (IMI of Arlington, Inc.)
Conditions to Legal 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 Senior Subordinated Notes: In order to exercise either Legal Defeasance or Covenant Defeasance:
(1a) the Company Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. United States dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest and premiumLiquidated Damages, if any, on the outstanding Senior Subordinated Notes on the Stated Maturity stated maturity or on the applicable redemption date, as the case may be, and the Company Issuers must specify whether the Senior Subordinated Notes are being defeased to maturity or to a particular redemption date;
(2b) in the case of Legal Defeasancean election under Section 8.2 hereof, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel stating in the United States confirming that (aA) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or (bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Senior Subordinated Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasancean election under Section 8.3 hereof, the Company Issuers shall have delivered to the Trustee an Opinion of Counsel stating in the United States confirming that the Holders of the outstanding Senior Subordinated Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) 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 (b) insofar as Events of Default from bankruptcy Sections 6.1(h) or insolvency events 6.1(i) hereof are concerned, at any time in the period ending on the 91st day after the date of deposit;
(5e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which any of the Company Issuers or any of its their Subsidiaries is a party or by which any of the Company Issuers or any of its their Restricted Subsidiaries is bound;
(6f) the Company Issuers must have delivered to the Trustee an Opinion of Counsel (subject to customary qualifications and assumptions) to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 on the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ ' rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7g) the Company Issuers must deliver have delivered to the Trustee an Officer’s Officers' Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders of Senior Subordinated Notes over the other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding creditors of the Company Issuers or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9h) the Company Issuers must deliver have delivered to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding ; and
(i) the foregoingTrustee shall have received such other documents, the assurances and Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companyas are necessary.
Appears in 1 contract
Samples: Indenture (Avalon Cable Finance Inc)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Outstanding Notes: In order to exercise either Legal Defeasance or Covenant Defeasance with respect to any Series of Notes:
(1) the Company Issuers must irrevocably deposit or cause to be irrevocably deposited with the Trustee, in trust, for the benefit of the Holders of the that Series of Notes, cash in Dollars, noncallable U.S. dollars, non-callable Government SecuritiesObligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest on the outstanding Outstanding Notes of that Series on the Stated Maturity stated date for payment thereof or on 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;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company Issuers shall have delivered delivered, or cause to be delivered, to the Trustee an Opinion of Counsel stating from outside counsel which need not meet the requirements of Sections 11.04 and 11.05 confirming that (aA) the Company has Issuers have received from, or there has been published by, the U.S. Internal Revenue Service a ruling ruling, or (bB) since the Issue Datedate 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 state confirm that, the 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;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company Issuers shall have delivered delivered, or cause to be delivered, to the Trustee an Opinion of Counsel stating from outside counsel which need not meet the requirements of Sections 11.04 and 11.05 confirming that the Holders of the outstanding Outstanding Notes of that 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;
(4) the Issuers shall have delivered, or cause to be delivered, to the Trustee an Opinion of Counsel from outside counsel which need not meet the requirements of Sections 11.04 and 11.05 confirming that the Holders of the Outstanding Notes of that Series will not recognize income, gain or loss in the jurisdiction of incorporation of the Irish Issuer for income tax purposes as a result of such Legal Defeasance or Covenant Defeasance and will be subject to income tax in such jurisdiction on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance or Covenant Defeasance had not occurred;
(5) no Default or Event of Default shall have occurred and be continuing either (a) on the date of the Issuers make such deposit; deposits (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit or insolvency events are concerned, at any time the granting of Liens in the period ending on the 91st day after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is boundconnection therewith);
(6) the Company must Issuers shall have delivered delivered, or cause to be delivered, to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditorsOfficers’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expenseIssuers; and
(97) the Company must deliver Issuers shall have delivered, or cause to be delivered, to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (AerCap Holdings N.V.)
Conditions to Legal 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:
(1) the Company Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesNotes issued hereunder, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premiumpremium and Additional Interest, if any, on the outstanding Notes issued hereunder on the Stated Maturity stated maturity or on the applicable redemption date, as the case may be, and the Company Issuers must specify whether the Notes are being defeased to maturity or to a particular redemption date;
(2) in the case of Legal Defeasance, the Company shall Issuers have delivered to the Trustee an Opinion opinion of Counsel stating counsel reasonably acceptable to the Trustee confirming that (a) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion opinion of Counsel shall state counsel will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall Issuers have delivered to the Trustee an Opinion opinion of Counsel stating counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have has occurred and be is continuing either (a) on the date of such deposit; or deposit (b) insofar as Events other than an Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, under any material agreement or instrument (other than this Indenture) to which the Company Issuers or any of its the Restricted Subsidiaries is are a party or by which the Company Issuers or any of its the Restricted Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Issuers must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders of Notes over the other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding creditors of the Company Issuers or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company Issuers must deliver to the Trustee an Officer’s Certificate and an Opinion opinion of Counselcounsel (which may be subject to certain qualifications), each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion requirements of Counsel required by clause (2) of this paragraph above with respect to a Legal Defeasance need not be delivered complied with if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity 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 CompanyIssuers.
Appears in 1 contract
Samples: Indenture (Barrington Quincy LLC)
Conditions to Legal 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 or 8.03 hereof with respect to the outstanding such Notes:
(1) the Company Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. dollar-denominated Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, without consideration of reinvestment, to pay the principal of, and interest and premiumpremium on, if any, on and interest, if any, on, the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating that confirming that:
(aA) one of the Company Issuers has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default under the Notes shall have occurred and be is continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concernedthe borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Debt), at any time in and the period ending on the 91st day after the date granting of depositLiens to secure such borrowings);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture and the agreements governing any other Debt being defeased, discharged or replaced) to which the Company Issuers or any of its Subsidiaries the Guarantors is a party or by which the Company Issuers or any of its Subsidiaries the Guarantors is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Issuers must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders of the Notes over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Company Issuers or others;; and
(8) if 7) the Notes are to be redeemed prior to their Stated Maturity, the Company Issuers must deliver to the Trustee irrevocable instructions to redeem all of and the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9) the Company must deliver to the Collateral Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoingIn addition, the Opinion of Counsel required by clause (2) of this paragraph with respect to Collateral will be released from the Lien securing the Notes, as provided in Section 12.05 hereof, upon a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee Covenant Defeasance in the name, and at the expense, of the Companyaccordance with this Article VIII hereof.
Appears in 1 contract
Samples: Indenture (Foresight Energy LP)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions (a) In order to the application of exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 to the outstanding Noteshereof:
(1i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountantsaccountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, on the outstanding Notes issued hereunder on the Stated Maturity or on the applicable redemption date, as the case may be, and the Company must specify whether the such Notes are being defeased to maturity or to a particular redemption date;
(2ii) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating 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 state will confirm that, the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3iii) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4iv) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default from bankruptcy resulting from, or insolvency events are concernedarising in connection with, at the borrowing of funds to be applied to such deposit and the grant of any time in the period ending on the 91st day after the date of depositLien securing such borrowing);
(5v) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries Guarantor is a party or by which the Company or any of its Subsidiaries Guarantor is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7vi) the Company must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit referred to in clause (i) was not made by the Company with the intent of preferring the Holders over the other creditors of the Company or any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9vii) the Company must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance of the Notes have been complied with. .
(b) Notwithstanding the foregoing, the Opinion of Counsel required by clause clauses (2a)(ii) of this paragraph and (a)(iii) above with respect to a Legal Defeasance or a Covenant Defeasance, as applicable, need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity 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.
(c) Upon satisfaction of the conditions set forth herein and upon the request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
Appears in 1 contract
Conditions to Legal 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. The Legal Defeasance or Covenant Defeasance may be exercised only if:
(1a) the Company must irrevocably deposit deposits with the Trustee, in trusttrust (the "DEFEASANCE TRUST"), for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountantsaccountants of recognized international standing, to pay the principal ofprincipal, and interest and premium, if any, and interest on the outstanding Notes on the Stated Maturity or on the applicable next available redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a that particular redemption date;
(2b) in the case of Legal Defeasance, the Company shall have delivered delivers to the Trustee an Opinion of Counsel stating 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 Datedate hereof, 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 state will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasance, the Company shall have delivered delivers to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default under Sections 6.01(g) or (h) shall have occurred and be continuing either (a) on with respect to the date of such deposit; or (b) insofar as Events of Default from bankruptcy or insolvency events are concerned, Company at any time in the period ending on the 91st day after the date of depositcash and/or non-callable U.S. Government Securities have been deposited in the defeasance trust;
(5e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound;
(6f) the Company must have delivered delivers to the Trustee an Opinion of Counsel Counsel, subject to customary exceptions, to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 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 generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law' rights;
(7g) the Company must deliver delivers to the Trustee an Officer’s Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the Company's other creditors with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9h) the Company must deliver delivers to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. .
(i) Notwithstanding the foregoing, the Opinion of Counsel required by clause (2b) of this paragraph above with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (xA) have become due and payable or payable, (yB) will become due and payable at their Stated Maturity on the maturity date within one year or (C) as to which a redemption notice has been given calling the Notes for redemption within one year, under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal or Covenant Defeasance. The following shall be the conditions In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the application of either Section 8.02 or 8.03 to the outstanding NotesNotes issued under this Indenture:
(1i) the Company Issuer must irrevocably deposit with the TrusteeTrustee or its designee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollarscash, Cash Equivalents constituting non-callable Government Securitiesgovernment securities, or a combination thereofof cash and Cash Equivalents constituting non-callable government securities (with such cash and government securities denominated in euros and U.S. dollars in amounts correlating to the obligations under the Euro Notes and Fixed Rate Dollar Notes, respectively), in such amounts as will be sufficient, in the opinion of a nationally an internationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premium, premium and Additional Amounts (if any) on, on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company Issuer must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2ii) in the case of Legal Defeasancean election under Section 8.02, the Company shall have delivered Issuer must deliver to the Trustee Trustee:
(A) an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that (a) the Company Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or (b) since the Issue Datedate 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 state will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such 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; and
(B) an Opinion of Counsel in the jurisdiction of organization of the Issuer and reasonably acceptable to the Trustee to the effect that the Holders of Notes will not recognize income, gain or loss for income tax purposes of such jurisdiction as a result of such deposit and defeasance and will be subject to income tax in such jurisdiction on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(3iii) in the case of Covenant Defeasancean election under Section 8.03, the Company shall have delivered Issuer must deliver to the Trustee Trustee:
(A) an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; and
(B) an Opinion of Counsel in the jurisdiction of organization of the Issuer and reasonably acceptable to the Trustee to the effect that the Holders will not recognize income, gain or loss for income tax purposes of such jurisdiction as a result of such deposit and defeasance and will be subject to income tax in such jurisdiction on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(4iv) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5v) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company Wind or any of its Subsidiaries is a party or by which the Company Wind or any of its Subsidiaries is bound;
(6vi) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Issuer must deliver to the Trustee an Officer’s Certificate (with a copy to each Paying Agent) stating that the deposit was not made by the Company Issuer with the intent of preferring the Holders of Notes over the other creditors of the Issuer or the Guarantors with the intent of defeating, hindering, delaying or defrauding any creditors of the Company Issuer, the Guarantor(s) or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9vii) the Company Issuer must deliver to the Trustee an Officer’s Certificate and an Opinion of CounselCounsel reasonably acceptable to the Trustee (with a copy to each Paying Agent), each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (VimpelCom Ltd.)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1a) the The Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government SecuritiesU.S. government obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest on the outstanding Notes on the Stated Maturity stated maturity or on the applicable optional 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;
(2b) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that in the United States reasonably acceptable to the Trustee confirming that:
(a1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or law;
(b2) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance Defeasance, and will be subject to 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 Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating Counsel, subject to customary assumptions and exceptions, reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time a failure to comply with Section 4.09 as a result of the borrowing of the funds required to effect such deposit and the granting of Liens in the period ending on the 91st day after the date of depositconnection therewith);
(5e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7f) the Company must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by them with the Company intent of preferring the Holders of the Notes over any of the Company’s other creditors or with the intent of defeating, hindering, delaying or defrauding any of their other creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9g) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance relating to the Notes have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal 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:
(1a) the Company Issuer must irrevocably deposit with the TrusteePaying Agent, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and interest and premium, if any, on and interest and Additional Amounts, if any, on, the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company Issuer must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2b) in the case of Legal Defeasancean election under Section 8.02, the Company Issuer shall have delivered to the Trustee Trustee, the Registrar and the Paying Agent an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(a1) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(b2) 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 state will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3c) in the case of Covenant Defeasancean election under Section 8.03, the Company Issuer shall have delivered to the Trustee Trustee, the Registrar and the Paying Agent an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4d) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default from bankruptcy resulting from, or insolvency events are concernedotherwise in connection with, at the borrowing of funds to be applied to such deposit pursuant to this Section 8.04 (and any time in similar concurrent deposit relating to other Indebtedness) or the period ending on the 91st day after the date grant of depositany Lien securing such borrowing);
(5e) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company Parent or any of its Restricted Subsidiaries is a party or by which the Company Issuer or any of its Restricted Subsidiaries is bound;
(6f) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Issuer must deliver to the Trustee Trustee, the Registrar and the Paying Agent an Officer’s 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 or any Guarantor with the intent of defeating, hindering, delaying or defrauding any creditors of the Company Issuer, any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9g) the Company must deliver Issuer shall have delivered to the Trustee Trustee, the Registrar and the Paying Agent an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Pacific Drilling S.A.)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, accountants to pay the principal of, and or interest and premium, if any, on on, the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee (asubject to customary exceptions and exclusions) confirming that:
(A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;,
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have has occurred and be is continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or insolvency events are concernedviolation of, at or constitute a default under, any time in other instrument to which the period ending on Company or any Subsidiary Guarantor is a party or by which the 91st day after the date of depositCompany or any Subsidiary Guarantor is bound;
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company must deliver to the Trustee an Officer’s 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;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal 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 13.2 (Legal Defeasance and Discharge) or 8.03 to the outstanding Notes:13.3 (Covenant Defeasance):
(1) the Company Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. dollarseuro, non-callable Government SecuritiesGerman Governmental Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, and interest and premiumpremium on, if any, on and interest on, the outstanding Outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption dateRedemption Date, as the case may be, and the Company Issuer must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;Redemption Date;
(2) in the case of an election under Section 13.2 (Legal DefeasanceDefeasance and Discharge), the Company shall have delivered Issuer must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of the Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;occurred;
(3) in the case of an election under Section 13.3 (Covenant Defeasance), the Company shall have delivered Issuer must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concernedthe borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness), at any time in and the period ending on the 91st day after the date granting of deposit;liens to secure such borrowings);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than the Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Company Issuer or any of its Subsidiaries either Guarantor is a party or by which the Company Issuer or any of its Subsidiaries either Guarantor is bound;bound; and
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9) the Company Issuer must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (CyrusOne Inc.)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesHolders, cash in U.S. dollars, non-callable U.S. Government SecuritiesObligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay make each scheduled payment of the principal of, and interest and premiumpremium on, if any, on and interest on, the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasance, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel Counsel, which such counsel shall be of recognized standing in respect of the U.S. federal income tax matters, stating that that, subject to customary assumptions and exclusions, (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state will confirm that, the Holders beneficial owners of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that the Holders Counsel, which such counsel shall be of recognized standing in respect of the outstanding U.S. federal income tax matters, stating that, subject to customary assumptions and exclusions, the beneficial owners of Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have has occurred and be is continuing either (a) on the date of such deposit; or deposit (b) insofar as Events other than an Event of Default resulting from bankruptcy or insolvency events are concernedthe borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Debt), at any time in and the period ending on the 91st day after the date granting of depositLiens to secure such borrowings);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture and the agreements governing any other Debt being defeased, discharged or replaced) to which the Company or any of its Subsidiaries the Guarantors is a party or by which the Company or any of its Subsidiaries the Guarantors is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 preferring the Holders over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Aci Worldwide, Inc.)
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premiumpremium and Liquidated Damages, if any, on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company Issuers must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at the borrowing of funds to be applied to such deposit (and any time in similar concurrent deposit relating to other Indebtedness) and the period ending on the 91st day after the date granting of depositLiens to secure such Indebtedness);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Company Targa Resources Partners or any of its Subsidiaries is a party or by which the Company Targa Resources Partners or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders of Notes over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Company Issuers or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal or Covenant Defeasance. (a) The following shall be the conditions to the application of either Section 8.02 10.2 or 8.03 10.3 hereof to any Securities or any series of Securities, as the outstanding Notescase may be, to be defeased:
(1i) the Company must shall irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the NotesSecurities as to which Legal Defeasance or Covenant Defeasance will occur, cash in U.S. dollarslegal tender, non-callable U.S. Government SecuritiesObligations, or a combination thereof, or other obligations as may be provided as contemplated by Section 3.1(15) with respect to such Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and interest and premium, if any, and interest on such Securities on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption datedate of such principal or installment of principal of, as the case may bepremium, if any, or interest on such Securities, and the Company must specify whether Trustee, for the Notes are being defeased to maturity or to benefit of the Holders of such Securities, has a particular redemption datevalid and perfected security interest in obligations so deposited;
(2ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating that in the United States reasonably acceptable to the Trustee confirming that: (aA) the Company has received from, or there has been published by, by the Internal Revenue Service Service, a ruling or (bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes such Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3iii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating in the United States reasonably acceptable to such Trustee confirming that the Holders of the outstanding Notes such Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
; (4iv) no Default or Event of Default with respect to such Securities shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit) and no Default or insolvency events are concernedEvent of Default under Section 8.1(v) or Section 8.1(vi) occurs, at any time in the period ending on the 91st day after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Conditions to Legal 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 or 8.03 to the outstanding Noteshereof:
(1) the Company Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premiumpremium and Liquidated Damages, if any, on the outstanding Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company Issuers must specify whether the Notes are being defeased to maturity such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company has Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) since the Issue Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have delivered Issuers must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or insolvency events are concernedviolation of, at or constitute a default under, any time in other instrument to which the period ending on Issuers or any Guarantor is a party or by which the 91st day after the date of depositIssuers or any Guarantor is bound;
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company Hxxxx Energy Partners or any of its Subsidiaries is a party or by which the Company Hxxxx Energy Partners or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(7) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate stating that the deposit was not made by the Company Issuers with the intent of preferring the Holders of Notes over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Company Issuers or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company Issuers must deliver to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this paragraph with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Appears in 1 contract
Samples: Indenture (Holly Energy Partners Lp)
Conditions to Legal or Covenant Defeasance. The following shall be the conditions (a) In order to the application of exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 to the outstanding Noteshereof:
(1i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereofof cash in U.S. dollars and non-callable U.S. Government Securities, in such amounts as will be sufficient, in the written opinion of a nationally an internationally recognized firm of independent public accountantsaccountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, on the outstanding Notes issued hereunder on the Stated Maturity or on the applicable redemption date, as the case may be, and the Company must specify whether the such Notes are being defeased to maturity or to a particular redemption date;
(2ii) in the case of Legal Defeasancean election under Section 8.02 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating 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 Datedate of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state will confirm that, the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3iii) in the case of Covenant Defeasancean election under Section 8.03 hereof, the Company shall have has delivered to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4iv) no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default from bankruptcy resulting from, or insolvency events are concernedarising in connection with, at the borrowing of funds to be applied to such deposit and the grant of any time in the period ending on the 91st day after the date of depositLien securing such borrowing);
(5v) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries Guarantor is a party or by which the Company or any of its Subsidiaries Guarantor is bound;
(6vi) the Company must have delivered deliver to the Trustee an Opinion of Counsel to the effect that, that assuming no intervening bankruptcy of the Company or any Guarantor between the date of deposit and the 91st day following the deposit referred to in clause (i), or if longer, the day immediately following the last day on which the deposit may be set aside as preferential payment under applicable law, and assuming that no Holder is an “insider” inside?' of the Company under applicable bankruptcy law, after the 91st such 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, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and the preference provisions of Section 15 547 of the New York Debtor and Creditor LawUnited States Federal Bankruptcy Code;
(7vii) the Company must deliver to the Trustee an Officer’s Officers' Certificate stating that the deposit referred to in clause (i) was not made by the Company with the intent of preferring the Holders over the other creditors of the Company or any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or any Guarantor or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(9viii) the Company must deliver to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, Defeasance of the Notes have been complied with. .
(b) Notwithstanding the foregoing, the Opinion of Counsel required by clause clauses (2ii) of this paragraph and (iii) above with respect to a Legal Defeasance or a Covenant Defeasance, as applicable, need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity 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.
(c) Upon satisfaction of the conditions set forth herein and upon the request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
Appears in 1 contract
Conditions to Legal 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 13.2 or 8.03 to the outstanding Notes13.3 of this Indenture:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the 8.5% Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereofof cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and or interest and premium, if any, on the outstanding Outstanding 8.5% Notes on the Stated Maturity stated date for payment thereof or on the applicable redemption dateRedemption Date, as the case may be, and the Company must specify whether the 8.5% Notes are being defeased to maturity such stated date for payment or to a particular redemption dateRedemption Date;
(2) in the case of Legal Defeasancean election under Section 13.2 of this Indenture, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating that reasonably acceptable to the Trustee confirming that:
(aA) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ruling; or
(bB) 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 state Confirm that, the Holders of the outstanding Outstanding 8.5% Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasancean election under Section 13.3 of this Indenture, the Company shall have delivered must deliver to the Trustee an Opinion of Counsel stating reasonably acceptable to the Trustee confirming that the Holders of the outstanding Outstanding 8.5% Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default with respect to the 8.5% Notes shall have occurred and be continuing either (a) on the date of such deposit; deposit (other than a Default or (b) insofar as Events Event of Default resulting from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance shall will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Guarantor 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 will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law;
(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 preferring the Holders of 8.5% Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;
(8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date under arrangement satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and
(97) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of CounselCertificate, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, set forth in clauses (1) through (6) of this Section 13.4 have been complied with. Notwithstanding ; and
(8) the foregoingCompany must deliver to the Trustee an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions, qualifications and exclusions), stating that all conditions precedent set forth in clauses (2), (3) and (5) of this Section 13.4 have been complied with; provided that the Opinion of Counsel required by with respect to clause (25) of this paragraph with respect to a Legal Defeasance need not Section 13.4 may be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving knowledge of notice of redemption by the Trustee in the name, and at the expense, of the Companysuch counsel.
Appears in 1 contract
Samples: First Supplemental Indenture (Frontier Oil Corp /New/)
