DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes. (2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes. (3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby. (4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes: (a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be. (b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 6 contracts
Samples: Indenture (Home Bancorp, Inc.), Indenture (Home Bancorp, Inc.), Indenture (Northfield Bancorp, Inc.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 9.08 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Subordinated Notes will have occurred and be continuing on the date of such deposit, and, solely in the case of Legal Defeasance under Section 3.02(2), no Event of Default, or event which with notice or lapse of time or both would become an Event of Default, under Section 4.01 will have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit (it being understood that this condition to Legal Defeasance under Section 3.02(2) will not be deemed satisfied until the expiration of such period).
(d) In the case of Legal Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel will confirm that, the Holders of such Outstanding 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.
(e) In the case of Covenant Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding 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.
(f) The Company will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the Legal Defeasance or Covenant Defeasance, as the case may be, under this Indenture have been satisfied.
(g) If the moneys or Government Obligations or combination thereof, as the case may be, deposited under Section 3.02(4)(a) above are sufficient to pay the principal of, and interest, if any, on, such Subordinated Notes provided such Subordinated Notes are redeemed on a particular Redemption Date, the Company will have given the Trustee irrevocable instructions to redeem such Subordinated Notes on such date and to provide notice of such redemption to Holders as provided in or under this Indenture.
(h) The Trustee will have received such other documents, assurances and Opinions of Counsel as the Trustee will have reasonably required in its discretion.
(5) Subject to the provisions of the last paragraph of Section 9.03, all money and Government Obligations deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 3.02(5), the “Trustee”) in accordance with Section 3.02(4)(a) in respect of any Outstanding Subordinated Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Subordinated Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any Subsidiary or Affiliate of the Company acting as Paying Agent) as the Trustee may determine in its discretion, to the Holders of all sums due and to become due thereon in respect of principal and interest but such money and Government Obligations need not be segregated from other funds, except to the extent required by law. The Company will pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited in accordance with this Section 3.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Subordinated Notes.
Appears in 6 contracts
Samples: Indenture (CapStar Financial Holdings, Inc.), Indenture (Midland States Bancorp, Inc.), Indenture (Midland States Bancorp, Inc.)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Company may may, at its option and evidenced by a resolution of its board of directors (or a duly constituted committee thereof) set forth in an Officer's Certificate, at any time, elect to have either Section 3.02(211.02(b) or Section 3.02(311.02(c) be applied to such Outstanding Subordinated all outstanding Equipment Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes11.02(d).
(2b) Upon the Company’s 's exercise under Section 11.02(a) of the above option applicable to this Section 3.02(211.02(b), each of the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated all outstanding Equipment Notes (including the Guarantee) on the date the conditions set forth in clause (4Section 11.02(d) of this Section 3.02 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will and the Guarantor shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notesthe outstanding Equipment Notes (including the Guarantee), which will shall thereafter be deemed to be “Outstanding” "outstanding" only for the purposes of Section 3.02(511.02(e) and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Equipment Notes, the Guarantee and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, on demand and at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated outstanding Equipment Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.0311.02(d), payments in respect of the principal of and interest, if any, premium and interest on, such Subordinated Equipment Notes when such payments are due, (ii) the Company's obligations of the Company and the Trustee with respect to such Subordinated Equipment Notes under Section 2.07Sections 2.03, Section 2.092.04, Section 9.02 2.05 and Section 9.032.06, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes11.02.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 6 contracts
Samples: Trust Indenture and Security Agreement (Trinity Industries Inc), Trust Indenture and Security Agreement (Trinity Industries Inc), Trust Indenture and Security Agreement (Trinity Industries Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Issuers may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s Issuers’ exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will Issuers shall be deemed to have been discharged from its obligations obligations[, and the provisions of Article 16 shall cease to be effective,] with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will Issuers shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the CompanyIssuers, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Issuers or exchange such Securities for securities of another issuer, (ii) the obligations of the Company Issuers and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into other securities of the Issuers or exchange such Securities for securities of another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company Issuers may exercise its their option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s Issuers’ exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will Issuers shall be released from its obligations under under, to the extent specified pursuant to Section 9.04 (except 3.1(19), any covenant applicable to such Securities[, and the provisions of Article 16 shall cease to be effective as it relates to the aforementioned obligations and covenants,] with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such obligation or covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company Issuers may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, [or Article,] whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant covenant[, or Article,] or by reason of reference in any such Section or such other covenant covenant[, or Article,] to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(7) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will Issuers shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.8 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party Issuers are parties or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 123rd day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2, the Issuers shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Issuers have received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
Appears in 4 contracts
Samples: Indenture (Teekay Offshore Finance Corp.), Indenture (Teekay LNG Finance Corp.), Indenture (Teekay LNG Finance Corp.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Issuers may at its their option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s Issuers’ exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will Issuers shall be deemed to have been discharged from its obligations obligations[, and the provisions of Article 17 shall cease to be effective,] with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will Issuers shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the CompanyIssuers, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Issuers or exchange such Securities for securities of another issuer, (ii) the obligations of the Company Issuers and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into other securities of the Issuers or exchange such Securities for securities of another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company Issuers may exercise its their option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s Issuers’ exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will Issuers shall be released from its obligations under under, to the extent specified pursuant to Section 9.04 (except 3.1(19), any covenant applicable to such Securities[, and the provisions of Article 17 shall cease to be effective as it relates to the aforementioned obligations and covenants,] with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such obligation or covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company Issuers may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, [or Article,] whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant covenant[, or Article,] or by reason of reference in any such Section or such other covenant covenant[, or Article,] to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(7) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will Issuers shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.8 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is Issuers are a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 123rd day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2, the Issuers shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Issuers have received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
Appears in 4 contracts
Samples: Indenture (Teekay Offshore Finance Corp.), Indenture (Teekay LNG Finance Corp.), Indenture (Teekay LNG Finance Corp.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under clauses (ii) and (iii) of Section 9.04 (except with respect to clause (i))and under Section 9.05, Section 9.05. Section 9.07 9.06 and Section 9.09 9.08 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Subordinated Notes will have occurred and be continuing on the date of such deposit, and, solely in the case of Legal Defeasance under Section 3.02(2), no Event of Default, or event which with notice or lapse of time or both would become an Event of Default, under Section 4.01 will have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit (it being understood that this condition to Legal Defeasance under Section 3.02(2) will not be deemed satisfied until the expiration of such period).
(d) In the case of Legal Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel will confirm that, the Holders of such Outstanding 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.
(e) In the case of Covenant Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding 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.
(f) The Company will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the Legal Defeasance or Covenant Defeasance, as the case may be, under this Indenture have been satisfied.
(g) If the moneys or Government Obligations or combination thereof, as the case may be, deposited under Section 3.02(4)(a) above are sufficient to pay the principal of, and interest, if any, on, such Subordinated Notes provided such Subordinated Notes are redeemed on a particular Redemption Date, the Company will have given the Trustee irrevocable instructions to redeem such Subordinated Notes on such date and to provide notice of such redemption to Holders as provided in or under this Indenture.
(h) The Trustee will have received such other documents, assurances and Opinions of Counsel as the Trustee will have reasonably required in its discretion.
(5) Subject to the provisions of the last paragraph of Section 9.03, all money and Government Obligations deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 3.02(5), the “Trustee”) in accordance with Section 3.02(4)(a) in respect of any Outstanding Subordinated Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Subordinated Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any Subsidiary or Affiliate of the Company acting as Paying Agent) as the Trustee may determine in its discretion, to the Holders of all sums due and to become due thereon in respect of principal and interest but such money and Government Obligations need not be segregated from other funds, except to the extent required by law. The Company will pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited in accordance with this Section 3.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Subordinated Notes.
Appears in 4 contracts
Samples: Indenture (Eagle Bancorp Montana, Inc.), Indenture (Eagle Bancorp Montana, Inc.), Indenture (FS Bancorp, Inc.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will or the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses clause (i) through (iv5) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.this
Appears in 3 contracts
Samples: Indenture (Assured Guaranty US Holdings Inc.), Indenture (Assured Guaranty LTD), Indenture (Assured Guaranty US Holdings Inc.)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Unless pursuant to Section 3.01, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 4.02 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 4.02 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.02 (with such modifications thereto as may be specified pursuant to Section 3.01 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.02(b) or Section 3.02(34.02(c) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.02.
(2b) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)4.02(b) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4d) of this Section 3.02 4.02 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will or the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (e) of this Section 3.02(5) 4.02 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto, and the Guarantee in respect thereof, are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantor, will shall execute proper instruments provided to it acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (d) of this Section 3.02(4)(a) 4.02 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into Common Stock of the Company or exchange such Securities for securities of the Guarantor or another issuer, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.05, 3.06, 10.02 and 10.03 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.04 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.02(d)(i) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into Common Stock of the Company or exchange such Securities for securities of the Guarantor or another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 6.06 herein and (iv) this Section 3.02 and Section 3.034.02. The Company may exercise its option under this Section 3.02(24.02(b) notwithstanding the prior exercise of its option under clause (c) of this Section 3.02(3) 4.02 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3c) Upon the Company’s exercise of the above option applicable to have this Section 3.02(3)4.02(c) apply with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its their obligations under any covenant applicable to such Securities specified pursuant to Section 9.04 (except 3.01(s), including any obligation to redeem or repurchase such securities at the option of the Holder thereof, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 the Guarantee in respect thereof, on and after the date the conditions set forth in clause (d) of this Section 3.02(4) 4.02 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant or obligation to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 5.01 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto and the Guarantee in respect thereof shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(2clause (b) or (c) of this Section 3.02(3) 4.02 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto and the Guarantee in respect thereof:
(ai) The Company will or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.07 who will shall agree to comply with the provisions of this Section 3.02 4.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (iA) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (iiB) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of with respect to such Securities and interest, if any, on such Subordinated Notesany Coupons appertaining thereto, money in an amount, or (iiiC) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to such Securities and Coupons appertaining thereto (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(bii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 5.01(f) or 5.01(g) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary is a party or by which it is bound.
(iv) In the case of an election under clause (b) of this Section 4.02 with respect to Registered Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company or the Guarantor has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (B) since the date of execution of this Indenture, there has been a change in the applicable United States Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for United States Federal income tax purposes as a result of such defeasance and will be subject to United States Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.
(v) In the case of an election under clause (c) of this Section 4.02 with respect to Registered Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for United States Federal income tax purposes as a result of such covenant defeasance and will be subject to United States Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(vi) With respect to defeasance only, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.01) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (d) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company or the Guarantor under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company or the Guarantor issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an “insider”).
(vii) With respect to defeasance only, the Company and the Guarantor shall have delivered to the Trustee an Officers’ Certificate and a Guarantor’s Officer’s Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company.
(viii) The Company and the Guarantor shall have delivered to the Trustee an Officers’ Certificate and a Guarantor’s Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 4.02 (as the case may be) have been complied with.
(ix) Notwithstanding any other provisions of this Section 4.02(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 3.01.
(e) Unless otherwise specified in or pursuant to this Indenture or any Series Authorization, if, after a deposit referred to in Section 4.02(d)(i) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.01 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.02(d)(i) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.02(d)(i) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such Currency in effect on the second Local Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. “Local Business Day” means a day on which commercial banks are open for business (including dealings in foreign exchange) in the principal financial center of the Currency of such payment. The Company and the Guarantor (without duplication) shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section Section 4.02(e) and Section 4.03, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, or the Guarantor upon Guarantor Request, as the case may be, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) of this Section 4.02 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.02.
Appears in 3 contracts
Samples: Indenture (Partnerre Capital Trust Iii), Indenture (PartnerRe Finance B LLC), Indenture (Partnerre LTD)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless, pursuant to Section 301, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 402 or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 402 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 402 (with such modifications thereto as may be specified pursuant to Section 301 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(2402(2) or Section 3.02(3402(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes402.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)402(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 402 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 402 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the CompanyCompany , will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 402 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert or exchange such Securities into Common Stock or other securities, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 305, 306, 1002 and 1003, with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.071004 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 401(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert or exchange such Securities into Common Stock or other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 402 and Section 3.03Sections 403 and 404. The Company may exercise its option under this Section 3.02(2402(2) notwithstanding the prior exercise of its option under Section 3.02(3402(3) with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(3)402(3) with respect to any Securities of or within a series, the Company will shall be released from its obligations under Section 9.04 (except 1005 and, to the extent specified pursuant to Section 301, any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 such Outstanding Securities and Section 9.09 any Coupons appertaining thereto on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 402 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 501(4) or 501(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 402 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 607 who will shall agree to comply with the provisions of this Section 3.02 402 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and, to the extent that such Securities provide for the payment of Additional Amounts thereon and the amount of any such Additional Amounts is at the time of deposit reasonably determinable by the Company (in the exercise by the Company of its sole and absolute discretion), any Additional Amounts with respect to, such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be, and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument relating to indebtedness for borrowed money to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit, and, solely in the case of defeasance under Section 402(2), no Event of Default with respect to such Securities and any Coupons appertaining thereto under clause (6) or (7) of Section 501 or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto under clause (6) or (7) of Section 501 shall have occurred and be continuing at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition to defeasance under Section 402(2) shall not be deemed satisfied until the expiration of such period).
(d) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance or covenant defeasance, as the case may be, 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 defeasance or covenant defeasance, as the case may be, had not occurred.
(e) The Company shall have delivered to the Trustee an Officers' Certificate stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 402 (as the case may be) have been complied with.
(f) If the monies or Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are sufficient to pay the principal of, and premium, if any, and interest, if any, on and, to the extent applicable, Additional Amounts, if any, with respect to, such Securities provided such Securities are redeemed on a particular Redemption Date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
(g) Notwithstanding any other provisions of this Section 402(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee -- collectively for purposes of this Section 402(5) and Section 403, the "Trustee") pursuant to clause (4) of Section 402 in respect of any Outstanding Securities of any series and any Coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any Coupons appertaining thereto and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any Coupons appertaining thereto of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law. Unless otherwise specified in or pursuant to this Indenture or any Securities, if, after a deposit referred to in Section 402(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 301 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 402(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 402(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 402 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 402.
Appears in 3 contracts
Samples: Indenture (CNF Transportation Inc), Indenture (CNF Transportation Inc), Indenture (CNF Transportation Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under Section 4.2(3) shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Section 2.07Sections 3.5, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.3.6,
Appears in 2 contracts
Samples: Indenture (Mgic Investment Corp), Indenture (Mgic Investment Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder hereunder, including, without limitation, the Company’s obligations to the Trustee under Section 5.07 and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under clauses (ii) and (iii) of Section 9.04 (except with respect to clause (i))9.04, Section 9.05. 9.05 and Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one calendar day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Subordinated Notes will have occurred and be continuing on the date of such deposit,
(d) In the case of Legal Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel will confirm that, the Holders of such Outstanding 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.
(e) In the case of Covenant Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding 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.
(f) The Company will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the Legal Defeasance or Covenant Defeasance, as the case may be, under this Indenture have been satisfied.
(g) If the moneys or Government Obligations or combination thereof, as the case may be, deposited under Section 3.02(4)(a) above are sufficient to pay the principal of, and interest, if any, on, such Subordinated Notes provided such Subordinated Notes are redeemed on a particular Redemption Date, the Company will have given the Trustee irrevocable instructions to redeem such Subordinated Notes on such date and to provide notice of such redemption to Holders as provided in or under this Indenture.
(h) The Trustee will have received such other documents, assurances and Opinions of Counsel as the Trustee will have reasonably required.
(5) Subject to the provisions of the last paragraph of Section 9.03, all money and Government Obligations deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 3.02(5), the “Trustee”) in accordance with Section 3.02(4)(a) in respect of any Outstanding Subordinated Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Subordinated Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any Subsidiary or Affiliate of the Company acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in respect of principal and interest but such money and Government Obligations need not be segregated from other funds, except to the extent required by law. The Company will indemnify the Trustee against and pay any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited in accordance with this Section 3.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Subordinated Notes.
Appears in 2 contracts
Samples: Indenture (Green Bancorp, Inc.), Indenture (Green Bancorp, Inc.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company Issuer may at its option and by Board Resolution, at any time, elect to have Section 3.02(2402(2) or Section 3.02(3402(3) be applied to the Outstanding Securities of any particular series specified in such Outstanding Subordinated Notes Board Resolution upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes402.
(2) Upon the CompanyIssuer’s exercise of the above option applicable to this Section 3.02(2402(2), the Company will Issuer shall be deemed to have been discharged from its obligations with respect to the Outstanding Securities of such Outstanding Subordinated Notes series on the date the conditions set forth in clause (4) of this Section 3.02 402(2) are satisfied (hereinafter, “Legal Defeasancelegal defeasance”). For this purpose, Legal Defeasance such legal defeasance means that the Company will Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such Outstanding Subordinated Notesseries, which will shall thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) Sections 403 and 404 and the other Sections provisions of this Indenture referred to below in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under the Securities of such Subordinated Notes series and this Indenture insofar as the Securities of such Subordinated Notes series are concerned (and the Trustee, at the expense of the CompanyIssuer, will shall execute proper instruments acknowledging the same), except for the following provisions hereof, which will shall survive until otherwise terminated or discharged hereundersuch legal defeasance and remain in full force and effect with respect to the Securities of such series: (i) the rights of Holders of the Securities of such Outstanding Subordinated Notes series to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03402(4)(i), payments in respect of the principal of (and interestpremium, if any, on, ) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on the Securities of such Subordinated Notes series when such payments are due, (ii) the obligations provisions of Sections 304, 305, 306, 606, 608(5), 1002, 1003 and 1012, and this Article 4 (other than Section 401), and if the Company Securities of such series will be paid on a Redemption Date, Article 11, and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties obligations and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03hereunder. The Company Issuer may exercise its option under this Section 3.02(2402(2) notwithstanding the prior exercise of its option under Section 3.02(3402(3). Upon the effectiveness of any legal defeasance (but not covenant defeasance) with respect to the Securities of a particular series, the Guarantor will be released from its Guarantees of the Securities of such Subordinated Notesseries.
(3) Upon the CompanyIssuer’s exercise of the above option applicable to this Section 3.02(3)402(3) with respect to the Securities of any particular series, the Company will Issuer and the Guarantor shall be released from its their respective obligations under Section 9.04 (except 1004 with respect to clause such Securities to keep in full force and effect its rights (i))charter and statutory) and franchises (but, Section 9.05. Section 9.07 for the avoidance of doubt, shall not be released from their respective obligations with respect to such Securities to do or cause to be done all things necessary to preserve and Section 9.09 keep in full force and effect their respective existences (except as permitted under Article 8)) and Sections 1005 through 1007, inclusive on and after the date the conditions set forth in Section 3.02(4402(4) are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and the Securities of such Subordinated Notes will series shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that with respect to such the Outstanding Subordinated NotesSecurities of a particular series, the Company Issuer and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantSection, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 501(3) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture Indenture, the Securities of such series and such Subordinated Notes will the related Guarantees shall be unaffected thereby.
(4) The following will shall be the conditions to application the effectiveness of legal defeasance pursuant to Section 3.02(2) or 402(2), and covenant defeasance pursuant to Section 3.02(3) 402(3), to any Outstanding Subordinated NotesSecurities of a series:
(ai) The Company will Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (iA) an amount in DollarsU.S. dollars, or (iiB) Government Obligations that which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and interestpremium, if any, ) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Subordinated NotesSecurities, money in an amount, or (iiiC) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal of (and interestpremium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and interestpremium, if any, on, ) and Interest on such Outstanding Subordinated Notes Securities on the Stated Maturity of such principal or installment of principal or interest or of (and premium, if any) and Interest and the Redemption Price upon redemption pursuant to Article 11 on the applicable Redemption Date, as the case may be, in accordance with the terms of this Indenture and such Securities.
(bii) In the case of legal defeasance pursuant to Section 402(2) with respect to Securities of a particular series, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (x) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of 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; or, in the case of covenant defeasance pursuant to Section 402(3), the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the Holders of 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.
(iii) Such Legal Defeasance legal defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Issuer or any Subsidiary the Guarantor is a party or by which it either of them is bound.
(iv) No Event of Default or event which with notice or lapse of time or both would become an Event of Default shall have occurred and be continuing on the date of such deposit, and no Event of Default or event which with notice or lapse of time or both would become an Event of Default under Section 501(5) or 501(6) shall have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit.
(v) The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the legal defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.
(vi) If the monies or Government Obligations or combination thereof, as the case may be, deposited under Section 402(4)(i) above are sufficient to pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Securities provided such Securities are redeemed on a particular Redemption Date, the Issuer shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
(vii) Such legal defeasance or covenant defeasance will not cause the Trustee to have a conflicting interest for the purposes of the Trust Indenture Act with respect any of the Issuer’s or the Guarantor’s securities.
(viii) Such legal defeasance or covenant defeasance will not cause any securities listed on any registered national securities exchange under the Exchange Act to be delisted.
(ix) Such legal defeasance or covenant defeasance will be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Issuer or the Guarantor in connection therewith.
(5) The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Securities.
(6) Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon an Issuer Request any money or Government Obligations (or any proceeds therefrom) held by it as provided in Section 402(2)(i) which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a legal defeasance or covenant defeasance, as applicable, in accordance with this Section 402.
Appears in 2 contracts
Samples: Indenture (Columbia Property Trust, Inc.), Indenture (Columbia Property Trust Operating Partnership, L.P.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will or the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto, and the Guarantee in respect thereof, are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantor, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and interestpremium, if any) and interest (including any Additional Interest), if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities of the Guarantor or another issuer, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Sections 10.4 and 17.2 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 2.074.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of the Guarantor or another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its their obligations under any covenant applicable to such Securities specified pursuant to Section 9.04 (except 3.1(20), with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 the Guarantee in respect thereof, on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of Securities and any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.Coupons appertaining thereto shall
Appears in 2 contracts
Samples: Indenture (Ace LTD), Indenture (Ace LTD)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will or the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto, and the Guarantee in respect thereof, are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantor, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and interestpremium, if any) and interest (including any Additional Interest), if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities of the Guarantor or another issuer, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Sections 10.4 and 17.2 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 2.074.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of the Guarantor or another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its their obligations under any covenant applicable to such Securities specified pursuant to Section 9.04 (except 3.1(20), with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 the Guarantee in respect thereof, on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(9) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto and the Guarantee in respect thereof shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto and the Guarantee in respect thereof:
(a5) The Company will or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and interestpremium, if any) and interest (including any Additional Interest), if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and interestpremium, if any) and interest (including any Additional Interest), if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b6) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary the Guarantor is a party or by which it either of them is bound.
(7) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 123rd day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(8) In the case of an election under clause (2) of this Section 4.2, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or the Guarantor has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(9) In the case of an election under clause (3) of this Section 4.2, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(10) The Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 123rd day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of the Company or the Guarantor under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company or the Guarantor issued in connection therewith.
(11) The Company and the Guarantor shall have delivered to the Trustee an Officer’s Certificate and a Guarantor’s Officer’s Certificate and the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(12) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 3.1.
(13) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest (including any Additional Interest), if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company and the Guarantor (without duplication) shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, or the Guarantor upon Guarantor Request, as the case may be, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 2 contracts
Samples: Indenture (Assured Guaranty US Holdings Inc.), Indenture (Assured Guaranty LTD)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, on such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities another issuer, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Section 2.07Sections 3.5, Section 2.093.6, Section 9.02 10.2 and Section 9.0310.3, and with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Sections 10.5 and 10.6, and, to the extent specified pursuant to Section 9.04 (except 3.1(21), any other covenant applicable to such Securities, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.purposes
Appears in 2 contracts
Samples: Indenture (Cit Group Inc), Indenture (Cit Group Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The In addition to discharge of this Indenture pursuant to Section 12.01, the Company may at its option and elect at any time, elect time either to have effect: (i) a defeasance and discharge of the Notes of any particular series under Section 3.02(212.02(a) below; or (ii) a covenant defeasance of the Notes of any particular series under Section 3.02(312.02(b) be applied to such Outstanding Subordinated Notes below; in each case upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause Section 12.02(b).
(4a) Upon election by the Company to effect a defeasance and discharge of the Notes of any series under this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose12.02(a) and satisfaction of the conditions precedent set forth in Section 12.02(b) with respect to the Notes of such series, Legal Defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by Notes of such Outstanding Subordinated Notes, which will thereafter series and the Company shall be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as all its other obligations relating to such Subordinated Notes are concerned (and under the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same)Indenture, except for Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10 and 12.05 of the following which will Indenture that shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders Notes of such Outstanding Subordinated Notes to receiveseries mature and are paid. Thereafter, solely from the trust fund described in Section 3.02(4)(a) Sections 7.06 and as more fully set forth in 12.05 of this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee Indenture shall survive with respect to the Notes of such Subordinated series.
(b) Upon election by the Company to effect a covenant defeasance with respect to the Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option any series under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(312.02(b), the Company will shall be released from its obligations under Section 9.04 (except with respect any covenants applicable to clause (i)), Section 9.05. Section 9.07 and Section 9.09 the Notes of such series which are subject to defeasance under the terms of this Indenture on and or after the date the conditions precedent set forth in Section 3.02(412.02(b) are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, with and will shall have no liability in respect of. of any term, condition or limitation set forth in any covenant applicable to such Section or any series which is subject to defeasance under the terms established with respect to such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein series pursuant to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected therebyIndenture.
(4c) The following will shall be conditions precedent to the conditions to application of Sections 12.02(a) and 12.02(b):
(1) with respect to Section 3.02(212.02(a) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The 12.02(b), the Company will irrevocably shall have deposited or caused cause to be deposited irrevocably with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) Trustee, as trust funds in trust for the purpose of making the following payments, payments and specifically pledged as security for, for and dedicated solely to, to the benefit of the Holdersholders of the Notes to be defeased, cash in U.S. dollars (ior such other money or currencies as shall then be legal tender in the United States) an amount in Dollarsand/or Governmental Obligations, (ii) Government Obligations that which through the scheduled payment of interest and principal and interest in respect thereof thereof, in accordance with their terms terms, will providebe provided (and without reinvestment and assuming no tax liability will be imposed on the Trustee), not later than one day before the due date of any payment of principal of and interestmoney, if any, on such Subordinated Notes, money or (iii) a combination thereof, an amount in any case, in an amountcash, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee discharge principal (or other qualifying trustee) to pay and discharge, the principal of and interestincluding premium, if any, on, ) and interest on such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest on the dates on which such installments of principal and interest are due, in accordance with the terms of this Indenture and such Notes;
(2) in the case of defeasance under Section 12.02(a), the Company shall have delivered to the Trustee an Opinion of Counsel based on the fact that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling (which ruling may be, but need not be, issued with respect to the Company) or (B) since the date of this Indenture, there has been a change in the applicable Redemption DateUnited States federal income tax law, in either case to the effect that, and such opinion shall confirm (i) that all conditions precedent to such defeasance have been satisfied and (ii) that the holders of the Outstanding Notes of such series will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United States federal income tax on the same amount and in the same manner and at the same times as would have been the case may be.if such deposit, defeasance and discharge had not occurred;
(b3) Such Legal Defeasance in the case of covenant defeasance under Section 12.02(b), the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, and such opinion shall confirm that, (i) that all conditions precedent to such defeasance have been satisfied and (ii) the holders of the Outstanding Notes of such series will not recognize income, gain or Covenant Defeasance loss for United States federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to United States federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred;
(4) such deposit and defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound;
(5) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance and discharge under (a) or the covenant defeasance under (b) (as the case may be) have been complied with;
(6) such defeasance and discharge or covenant defeasance will not cause the Trustee to have a conflicting interest; and
(7) the Company has paid or caused to be paid all other sums payable with respect to the Notes to be defeased.
Appears in 2 contracts
Samples: Indenture (International Flavors & Fragrances Inc), Indenture (Nutrition & Biosciences, Inc.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and by Board Resolution, at any time, elect to have Section 3.02(2402(2) or Section 3.02(3402(3) be applied to the Outstanding Securities of any particular series specified in such Outstanding Subordinated Notes Board Resolution upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes402.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2402(2), the Company will shall be deemed to have been discharged from its obligations with respect to the Outstanding Securities of such Outstanding Subordinated Notes series on the date the conditions set forth in clause (4Section 402(4) of this Section 3.02 are satisfied (hereinafter, “Legal Defeasancelegal defeasance”). For this purpose, Legal Defeasance such legal defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such Outstanding Subordinated Notesseries, which will shall thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections provisions of this Indenture referred to below in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under the Securities of such Subordinated Notes series and this Indenture insofar as the Securities of such Subordinated Notes series are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following provisions hereof, which will shall survive until otherwise terminated or discharged hereundersuch legal defeasance and remain in full force and effect with respect to the Securities of such series: (i) the rights of Holders of the Securities of such Outstanding Subordinated Notes series to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03402(4)(i), payments in respect of the principal of (and interestpremium, if any, on, ) and Interest (including the Redemption Price upon redemption pursuant to Article Eleven) on the Securities of such Subordinated Notes series when such payments are due, (ii) the obligations provisions of Sections 305, 306, 308, 309, 310, 607, 608(5), 1002, 1003 1009 (if applicable to the Company Securities of such series) and 1011, and this Article Four (other than Section 401), and if the Trustee with respect to Securities of such Subordinated Notes under Section 2.07series will be paid on a Redemption Date, Section 2.09Article Eleven, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties obligations and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03hereunder. The Company may exercise its option under this Section 3.02(2402(2) notwithstanding the prior exercise of its option under Section 3.02(3402(3). Upon the effectiveness of any legal defeasance (but not covenant defeasance) with respect to the Securities of a particular series, the Guarantor will be released from its Guarantees of the Securities of such Subordinated Notesseries.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3)402(3) with respect to the Securities of any particular series, the Company will and the Guarantor shall be released from its their respective obligations under Section 9.04 (except 1004 with respect to clause such Securities to keep in full force and effect their respective rights (icharter and statutory) and franchises (but, for the avoidance of doubt, shall not be released from their respective obligations with respect to the Securities of such series to do or cause to be done all things necessary to preserve and keep in full force and effect their respective existences (except as permitted under Article Eight))) and Sections 1005 through 1007, inclusive, and, if expressly provided pursuant to Section 9.05. Section 9.07 and Section 9.09 301, any additional covenants applicable to the Securities of such series on and after the date the conditions set forth in Section 3.02(4402(4) are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and the Securities of such Subordinated Notes will series shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that with respect to the Outstanding Securities of such Outstanding Subordinated Notesseries, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant as to which covenant defeasance has become effective, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document covenant, and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 501(5) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture Indenture, the Securities of such series and such Subordinated Notes will the related Guarantees shall be unaffected thereby.
(4) The following will shall be the conditions to application the effectiveness of legal defeasance pursuant to Section 3.02(2) or 402(2), and covenant defeasance pursuant to Section 3.02(3) 402(3), to any Outstanding Subordinated NotesSecurities of or within a series:
(ai) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (iA) an amount in DollarsU.S. dollars, or (iiB) Government Obligations that which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest(or premium, if any, ) or Interest (including the Redemption Price upon redemption pursuant to Article Eleven) on such Subordinated NotesSecurities, money in an amount, or (iiiC) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and interestpremium, if any, on, ) and Interest on such Outstanding Subordinated Notes Securities on the Stated Maturity of such principal or installment of principal of (or interest premium, if any) or Interest and the Redemption Price upon redemption pursuant to Article Eleven on the applicable Redemption Date, as the case may be, in accordance with the terms of this Indenture and such Securities.
(bii) In the case of legal defeasance pursuant to Section 402(2) with respect to Securities of a particular series, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of 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; or, in the case of covenant defeasance pursuant to Section 402(3), the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the Holders of 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.
(iii) Such Legal Defeasance legal defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary the Guarantor is a party or by which it either of them is bound.
(iv) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit, and no Event of Default or event which with notice or lapse of time or both would become an Event of Default under Section 501(8) or 501(9) shall have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit.
(v) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the legal defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.
(vi) If the monies or Government Obligations or combination thereof, as the case may be, deposited under Section 402(4)(i) above are sufficient to pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article Eleven) on such Securities provided such Securities are redeemed on a particular Redemption Date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
(5) The Company shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 and the principal of (and premium, if any) and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Securities.
(6) Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon a Company Request any money or Government Obligations (or any proceeds therefrom) held by it with respect to the Securities of any series as provided in Section 402(4)(i) which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a legal defeasance or covenant defeasance, as applicable, with respect to the Securities of such series in accordance with this Section 402.
Appears in 2 contracts
Samples: Supplemental Indenture (Kilroy Realty, L.P.), Supplemental Indenture (Kilroy Realty, L.P.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will and each Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will and/or the Guarantors shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto, and the Guarantee in respect thereof, are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantors, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, (ii) the obligations and any rights of such Holder to convert such Securities into other securities of the Company and the Trustee with respect to or exchange such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities Securities for securities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (Guarantor or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.issuer,
Appears in 2 contracts
Samples: Indenture (FCC Acquisitions Corp), Indenture (Performance Materials I Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The following provisions shall be applicable to the Securities, and subject to Section 4.5, the Company may at its option and by Board Resolution, at any time, with respect to such Securities elect to have Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities, the Company will and the Guarantor shall be deemed to have been discharged from its their obligations with respect to such Outstanding Subordinated Notes Securities and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will or the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and the Guarantee in respect thereof are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantor, will shall execute proper instruments acknowledging the same), except for the following following, which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities when such payments are due, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5 and 3.6, this Section 2.074.2, Section 2.0910.2 and Article 18, and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 9.02 and 16.2 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited with respect to such Additional Amounts pursuant to Section 9.034.2(4)(a) below), (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to the Securities, the Company will and the Guarantor shall be released from its their obligations under Section 9.04 (except Sections 10.4 and 10.5 and Article 8 with respect to clause (i))such Outstanding Securities, Section 9.05. Section 9.07 and Section 9.09 the Guarantee in respect thereof, on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantSection, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(3) or 5.1(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will the Guarantee in respect thereof shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities and the Guarantee in respect thereof:
(a) The Company will or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in Dollars, or (ii2) Government Obligations that which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities at the Stated Maturity of such principal or installment of principal or premium or interest or on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture (other than a default or event of default resulting from the incurrence of Indebtedness all or a portion of the proceeds of which will be used to defease such Securities pursuant to clause (2) or (3) of this Section 4.2 concurrently with such incurrence) or any other material agreement or instrument to which the Company or any Subsidiary the Guarantor is a party or by which it either of them is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such 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 such Securities pursuant to clause (2) or (3) of this Section 4.2 concurrently with such incurrence).
(d) In the case of an election under clause (2) of this Section 4.2, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or the Guarantor has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred; provided, however, that such Opinion of Counsel need not be delivered if such Outstanding Securities not previously delivered to the Trustee for cancellation (1) have become due and payable; (2) will become due and payable at their Stated Maturity within one year; or (3) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense of, the Company and the Guarantor.
(e) In the case of an election under clause (3) of this Section 4.2, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such 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.
(f) The Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no Holder is an insider of the Company or the Guarantor and after the 91st day after the date of deposit, all money and Government Obligations (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of the Company or the Guarantor under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company or the Guarantor issued in connection therewith.
(g) The Company and the Guarantor shall have delivered to the Trustee Officer's Certificates of the Company and the Guarantor and the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, or the Guarantor upon Guarantor Request, as the case may be, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 2 contracts
Samples: Limited Waiver (Elan Corp PLC), Limited Waiver (Elan Corp PLC)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and by Board Resolution, at any time, elect to have Section 3.02(2402(2) or Section 3.02(3402(3) be applied to the Outstanding Securities of any particular series specified in such Outstanding Subordinated Notes Board Resolution upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes402.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2402(2), the Company will shall be deemed to have been discharged from its obligations with respect to the Outstanding Securities of such Outstanding Subordinated Notes series on the date the conditions set forth in clause (4) of this Section 3.02 402(2) are satisfied (hereinafter, “Legal Defeasancelegal defeasance”). For this purpose, Legal Defeasance such legal defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such Outstanding Subordinated Notesseries, which will shall thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) Sections 403 and 404 and the other Sections provisions of this Indenture referred to below in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under the Securities of such Subordinated Notes series and this Indenture insofar as the Securities of such Subordinated Notes series are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following provisions hereof, which will shall survive until otherwise terminated or discharged hereundersuch legal defeasance and remain in full force and effect with respect to the Securities of such series: (i) the rights of Holders of the Securities of such Outstanding Subordinated Notes series to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03402(4)(i), payments in respect of the principal of (and interestpremium, if any, on, ) and Interest (including the Redemption Price upon redemption pursuant to Article Eleven) on the Securities of such Subordinated Notes series when such payments are due, (ii) the obligations provisions of Sections 305, 306, 309, 607, 608(5), 1002, 1003 and 1012, and this Article Four (other than Section 401), and if the Company Securities of such series will be paid on a Redemption Date, Article Eleven, and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties obligations and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03hereunder. The Company may exercise its option under this Section 3.02(2402(2) notwithstanding the prior exercise of its option under Section 3.02(3402(3). Upon the effectiveness of any legal defeasance (but not covenant defeasance) with respect to the Securities of a particular series, the Guarantor will be released from its Guarantees of the Securities of such Subordinated Notesseries.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3)402(3) with respect to the Securities of any particular series, the Company will and the Guarantor shall be released from its their respective obligations under Section 9.04 (except 1004 with respect to clause such Securities to keep in full force and effect its rights (icharter and statutory) and franchises (but, for the avoidance of doubt, shall not be released from their respective obligations with respect to such Securities to do or cause to be done all things necessary to preserve and keep in full force and effect their respective existences (except as permitted under Article Eight))) and Sections 1005 through 1007, Section 9.05. Section 9.07 and Section 9.09 inclusive on and after the date the conditions set forth in Section 3.02(4402(4) are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and the Securities of such Subordinated Notes will series shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that with respect to such the Outstanding Subordinated NotesSecurities of a particular series, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantSection, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 501(5) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture Indenture, the Securities of such series and such Subordinated Notes will the related Guarantees shall be unaffected thereby.
(4) The following will shall be the conditions to application the effectiveness of legal defeasance pursuant to Section 3.02(2) or 402(2), and covenant defeasance pursuant to Section 3.02(3) 402(3), to any Outstanding Subordinated NotesSecurities of or within a series:
(ai) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (iA) an amount in DollarsU.S. dollars, or (iiB) Government Obligations that which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and interestpremium, if any, ) and Interest (including the Redemption Price upon redemption pursuant to Article Eleven) on such Subordinated NotesSecurities, money in an amount, or (iiiC) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal of (and interestpremium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article Eleven), in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and interestpremium, if any, on, ) and Interest on such Outstanding Subordinated Notes Securities on the Stated Maturity of such principal or installment of principal or interest or of (and premium, if any) and Interest and the Redemption Price upon redemption pursuant to Article Eleven on the applicable Redemption Date, as the case may be, in accordance with the terms of this Indenture and such Securities.
(bii) In the case of legal defeasance pursuant to Section 402(2) with respect to Securities of a particular series, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of 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; or, in the case of covenant defeasance pursuant to Section 402(3), the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the Holders of 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.
(iii) Such Legal Defeasance legal defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary the Guarantor is a party or by which it either of them is bound.
(iv) No Event of Default or event which with notice or lapse of time or both would become an Event of Default shall have occurred and be continuing on the date of such deposit, and no Event of Default or event which with notice or lapse of time or both would become an Event of Default under Section 501(8) or 501(9) shall have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit.
(v) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the legal defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.
(vi) If the monies or Government Obligations or combination thereof, as the case may be, deposited under Section 402(4)(i) above are sufficient to pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article Eleven) on such Securities provided such Securities are redeemed on a particular Redemption Date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
(5) The Company shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article Eleven) received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Securities.
(6) Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon a Company Request any money or Government Obligations (or any proceeds therefrom) held by it as provided in Section 402(2)(i) which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a legal defeasance or covenant defeasance, as applicable, in accordance with this Section 402.
Appears in 2 contracts
Samples: Indenture (Kilroy Realty, L.P.), Indenture (Kilroy Realty, L.P.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the ---------- Company will or the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses clause (i) through (iv5) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.----------- this
Appears in 2 contracts
Samples: Junior Subordinated Indenture (Partnerre LTD), Indenture (Partnerre LTD)
DEFEASANCE AND COVENANT DEFEASANCE. (1A) Company's Option to Effect Defeasance or Covenant Defeasance The Company may may, at its option and by Board Resolution, at any time, with respect to the Note, elect to have Section 3.02(2either Condition 13(B) or Section 3.02(313(C) be applied to such the Outstanding Subordinated Notes Note upon compliance with the conditions set forth below in this Section 3.02. Condition, The Company shall promptly give notice of such election to the Holders.
(B) Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Discharge Upon the Company’s 's exercise under Condition 13(A) of the above option applicable to this Section 3.02(2Condition 13(B), the Company will shall be deemed to have been discharged from its obligations with respect to such the Outstanding Subordinated Notes Note on the date the conditions set forth in clause (4Condition 13(D) of this Section 3.02 are satisfied (“Legal Defeasance”hereinafter, "legal defeasance"). For this purpose, Legal Defeasance such legal defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such the Outstanding Subordinated NotesNote, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of Section 3.02(5Condition 13(E) and the other Sections Conditions of this Indenture these Terms and Conditions referred to in clauses (i1) through and (iv2) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Note, including the obligation to pay interest on the Note, and this Indenture these Terms and Conditions insofar as such Subordinated Notes are Note is concerned (and the TrusteeHolders, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i1) the rights of Holders of such the Outstanding Subordinated Notes Note to receive, solely from the trust fund described in Section 3.02(4)(aCondition 13(D) and as more fully set forth in this Section 3.02 and Section 3.03such Condition, payments in respect of the principal of and interest, if any, on, interest on such Subordinated Notes Note when such payments are due, and (iiB) the Company's obligations of the Company and the Trustee with respect to such Subordinated Notes the Note under Section 2.07Conditions 1(D), Section 2.091(E), Section 9.02 and Section 9.031(H), (iii3(D) or 3(L). Subject to compliance with this Condition, the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2Condition 13(B) notwithstanding the prior exercise of its option under Section 3.02(3Condition 13(C) with respect to such Subordinated Notesthe Note.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 2 contracts
Samples: Convertible Note Agreement (Harken Energy Corp), Convertible Note Agreement (Harken Energy Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless, pursuant to Section 301, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 402 or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 402 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 402 (with such modifications thereto as may be specified pursuant to Section 301 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(2402(2) or Section 3.02(3402(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes402.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)402(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 402 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 402 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the CompanyCompany , will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 402 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert or exchange such Securities into Common Stock or other securities, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 305, 306, 1002 and 1003, with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.071004, Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert or exchange such Securities into Common Stock or other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 402 and Section 3.03Sections 403 and 404. The Company may exercise its option under this Section 3.02(2402(2) notwithstanding the prior exercise of its option under Section 3.02(3402(3) with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(3)402(3) with respect to any Securities of or within a series, the Company will shall be released from its obligations under Section 9.04 1005 (except other than the Company's obligation to preserve and keep in full force and effect its corporate existence pursuant to Section 1005) and, to the extent specified pursuant to Section 301, any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 such Outstanding Securities and Section 9.09 any Coupons appertaining thereto on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 402 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 501(4) or 501(7) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 402 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 607 who will shall agree to comply with the provisions of this Section 3.02 402 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity or, if such defeasance or covenant defeasance is to be effected in compliance with subsection (f) below, on the relevant Redemption Date, as the case may be) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be, and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Major Bank Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit, and, solely in the case of defeasance under Section 402(2), no Event of Default with respect to such Securities and any Coupons appertaining thereto under clause (5) or (6) of Section 501 or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto under clause (5) or (6) of Section 501 shall have occurred and be continuing at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition to defeasance under Section 402(2) shall not be deemed satisfied until the expiration of such period).
(d) In the case of defeasance pursuant to Section 402(2), the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for federal income tax purposes as a result of such 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 defeasance had not occurred; or, in the case of covenant defeasance pursuant to Section 402(3), the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(e) The Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.
(f) If the monies or Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are sufficient to pay the principal of, and premium, if any, and interest, if any, on such Securities provided such Securities are redeemed on a particular Redemption Date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
(g) Notwithstanding any other provisions of this Indenture to the contrary, unless otherwise provided pursuant to Section 301 with respect to the Securities of such series, defeasance and covenant defeasance of the Securities of such series may only be effected during the last year prior to the final Stated Maturity of the principal of such Securities.
(h) Notwithstanding any other provisions of this Section 402(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee -- collectively for purposes of this Section 402(5) and Section 403, the "Trustee") pursuant to clause (4) of Section 402 in respect of any Outstanding Securities of any series and any Coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any Coupons appertaining thereto and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any Coupons appertaining thereto of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law. Unless otherwise specified in or pursuant to this Indenture or any Securities, if, after a deposit referred to in Section 402(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 301 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 402(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 402(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 402 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 402.
Appears in 2 contracts
Samples: Indenture (Bay View Capital Corp), Indenture (Bay View Capital Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1) Section 1301 Company's Option to Effect Defeasance or Covenant Defeasance. The Company may elect, at its option and at any time, elect to have Section 3.02(2) 1302 or Section 3.02(3) be 1303 applied to any Securities or any series of Securities, as the case may be, designated pursuant to Section 301 as being defeasible pursuant to such Outstanding Subordinated Notes Section 1302 or 1303, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.02301 for such Securities. Legal Section 1302 Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Discharge. Upon the Company’s 's exercise of the above its option applicable (if any) to have this Section 3.02(2)applied to any Securities or any series of Securities, as the case may be, the Company will shall be deemed to have been discharged from its obligations obligations, and the provisions of Article Fourteen shall cease to be effective, with respect to such Outstanding Subordinated Notes Securities as provided in this Section on and after the date the conditions set forth in clause (4) of this Section 3.02 1304 are satisfied (“Legal hereinafter called "Defeasance”"). For this purpose, Legal such Defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, Securities and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for subject to the following which will shall survive until otherwise terminated or discharged hereunder: (ia) the rights of Holders of such Outstanding Subordinated Notes Securities to receive, solely from the trust fund described in Section 3.02(4)(a) 1304 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of and interest, if any, on, any premium and interest on such Subordinated Notes Securities when such payments are due, (iib) the Company's obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Section 2.07Sections 304, Section 2.09305, Section 9.02 306, 1002 and Section 9.031003, (iiic) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (ivd) this Section 3.02 and Section 3.03Article. The Subject to compliance with this Article, the Company may exercise its option under (if any) to have this Section 3.02(2) applied to any Securities notwithstanding the prior exercise of its option under (if any) to have Section 3.02(3) with respect 1303 applied to such Subordinated NotesSecurities.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 2 contracts
Samples: Indenture (Sba Communications Corp), Indenture (SNH Nebraska Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its their respective obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and the related Guarantee on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will and the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto and the related Guarantee, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its their other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto and the related Guarantee and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto and the related Guarantee are concerned (and the Trustee, at the expense of the CompanyCompany or the Guarantor, will as the case may be, shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into Common Stock of the Company or exchange such Securities for other securities, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Section 2.073.5, Section 2.093.6, Section 9.02 10.2 and Section 9.0310.3 and with respect to the payment of Additional Amounts, if any, on such Securities (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), and with respect to any rights to convert such Securities into Common Stock of the Company or exchange such Securities for other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 6.6 herein and (iv) this Section 3.02 and Section 3.034.2. The Company or the Guarantor may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its obligations under their respective obligations, to the extent specified pursuant to Section 9.04 (except 3.1(19), any other covenant applicable to such Securities, including any obligation to redeem or repurchase such securities at the option of the Holder thereof, with respect to clause (i)), Section 9.05. Section 9.07 such Outstanding Securities and Section 9.09 any Coupons appertaining thereto and the related Guarantee on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities and any Coupons appertaining thereto and the related Guarantee shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenantcovenant or obligation, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant or obligation to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 5.1 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of with respect to such Securities and interest, if any, on such Subordinated Notesany Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to such Securities and Coupons appertaining thereto (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(b) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 5.1(6) or (7) shall have occurred at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(c) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary the Guarantor is a party or by which it is bound.
(d) In the case of an election under clause (2) of this Section 4.2 with respect to Registered Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2 with respect to Registered Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) With respect to defeasance only, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an “insider”).
(g) With respect to defeasance only, the Company shall have delivered to the Trustee an Officers’ Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company.
(h) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(i) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Series Authorization, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company or the Guarantor, as the case may be, shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company or the Guarantor from time to time upon Company Request or Guarantor Request, as the case may be, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 2 contracts
Samples: Indenture (Validus Holdings (UK) PLC), Indenture (Validus Holdings (UK) PLC)
DEFEASANCE AND COVENANT DEFEASANCE. (1) Section 1301 Company's Option to Effect Defeasance or Covenant Defeasance. The Company may elect, at its option and at any time, elect to have Section 3.02(2) 1302 or Section 3.02(3) be 1303 applied to any Securities or any series of Securities, as the case may be, designated pursuant to Section 301 as being defeasible pursuant to such Outstanding Subordinated Notes Section 1302 or 1303, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.02301 for such Securities. Legal Section 1302 Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Discharge. Upon the Company’s 's exercise of the above its option applicable (if any) to have this Section 3.02(2)applied to any Securities or any series of Securities, as the case may be, the Company will shall be deemed to have been discharged from its obligations obligations, and the provisions of Article Fourteen shall cease to be effective, with respect to such Outstanding Subordinated Notes Securities as provided in this Section on and after the date the conditions set forth in clause (4) of this Section 3.02 1304 are satisfied (“Legal hereinafter called "Defeasance”"). For this purpose, Legal such Defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, Securities and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for subject to the following which will shall survive until otherwise terminated or discharged hereunder: (ia) the rights of Holders of such Outstanding Subordinated Notes Securities to receive, solely from the trust fund described in Section 3.02(4)(a) 1304 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of and interest, if any, on, any premium and interest on such Subordinated Notes Securities when such payments are due, (iib) the Company's obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Section 2.07Sections 304, Section 2.09305, Section 9.02 306, 1002 and Section 9.031003, (iiic) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (ivd) this Section 3.02 and Section 3.03Article. The Subject to compliance with this Article, the Company may exercise its option under (if any) to have this Section 3.02(2) applied to any Securities notwithstanding the prior exercise of its option under (if any) to have Section 3.02(3) with respect 1303 applied to such Subordinated Notes.
(3) Securities. Section 1303 Covenant Defeasance. Upon the Company’s 's exercise of the above its option applicable (if any) to have this Section 3.02(3)applied to any Securities or any series of Securities, as the case may be, (a) the Company will shall be released from its obligations under clause (c) of Section 9.04 801 and any covenants provided pursuant to clause (except r) of Section 301, Section 1005 or clause (b) or (g) of Section 901 for the benefit of the Holders of such Securities, and (b) the occurrence of any event specified in clause (d) of Section 501 (with respect to any of clause (i))c) of Section 801 and any such covenants provided pursuant to clause (r) of Section 301, Section 9.05. 1005 or clause (b) or (g) of Section 9.07 901) or clause (e) of Section 501 shall be deemed not to be or result in an Event of Default, and (c) the provisions of Article Fourteen shall cease to be effective, in each case with respect to such Securities as provided in this Section 9.09 on and after the date the conditions set forth in Section 3.02(4) 1304 are satisfied (“hereinafter called "Covenant Defeasance”"), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company may omit to comply with, with and will shall have no liability in respect of. of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of clause (d) of Section 501) or any such other covenantArticle Fourteen, whether directly or indirectly, indirectly by reason of any reference elsewhere herein to any such Section or such other covenant Article or by reason of any reference in any such Section or such other covenant Article to any other provision herein or in any other document and such omission to comply will not constitute a defaultdocument, but, except as specified above, but the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4) . Section 1304 Conditions to Defeasance or Covenant Defeasance. The following will shall be the conditions to the application of Section 3.02(2) 1302 or Section 3.02(3) 1303 to any Outstanding Subordinated NotesSecurities or any series of Securities, as the case may be:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying which satisfies the requirements of contemplated by Section 5.08 who will agree 609 and agrees to comply with the provisions of this Section 3.02 Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit benefits of the HoldersHolders of such Securities, (i) money in an amount in Dollarsamount, or (ii) U.S. Government Obligations that which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notespayment, money in an amount, or (iii) a combination thereof, in any case, in an amount, each case sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, any premium and interest on such Outstanding Subordinated Notes Securities on the respective Stated Maturity Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, "U.S. Government Obligation" means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or installment interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest or the applicable Redemption Date, as the case may beevidenced by such depositary receipt.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 2 contracts
Samples: Indenture (SNH Nebraska Inc), Indenture (SNH Nebraska Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Notes of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Notes of such series or (ii) covenant defeasance of the Notes of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Notes of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Notes), shall be applicable to such Notes and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Notes and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Notes of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesNotes and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, on such Subordinated Notes and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Notes into other securities of the Company or exchange such Notes for securities another issuer, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07Sections 3.5, Section 2.093.7, Section 9.02 10.2 and Section 9.0310.3, and with respect to any rights to convert such Notes into other securities of the Company or exchange such Notes for securities of another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee (including in its capacity as Authenticating Agent, Calculation Agent and Issuing and Paying Agent) hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesNotes and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Notes of or within a series, the Company will shall be released from its obligations under Sections 10.4 and 10.5, and, to the extent specified pursuant to Section 9.04 (except 3.1, any other covenant applicable to such Notes, with respect to clause (i))such Outstanding Notes and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesNotes and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesNotes of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Notes and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Notes and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Notes and Coupons appertaining thereto (determined on the basis of the Currency in which such Notes and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesNotes and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants Independent Public Accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Notes and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Notes and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Notes and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit.
(d) In the case of an election under clause (2) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the U.S. Internal Revenue Service a letter ruling, or there has been published by the U.S. Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Notes and any Coupons appertaining thereto will not recognize income, gain or loss for federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Notes and any Coupons appertaining thereto 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.
(f) The Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(g) If the Notes are to be redeemed prior to the Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made.
(h) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Note, if, after a deposit referred to in Section 4.2(4)(a) has been made, a Conversion Event occurs in respect of euros or the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Note and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, such Note as the same becomes due out of the proceeds yielded by converting the amount or other property deposited in respect of such Note into the Currency in which such Note becomes payable as a result of such Conversion Event based on the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Notes and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of Independent Public Accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 2 contracts
Samples: Senior Indenture (Cit Group Inc), Subordinated Indenture (Cit Group Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated NotesSecurities, which will shall thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such Holder to convert or exchange such Securities into Common Stock or other securities, cash or other property, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Section 2.073.4, Section 2.093.5, Section 9.02 3.6, Section 10.2 and Section 9.0310.3 and the obligations of the Company with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 10.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), and with respect to any rights to convert or exchange such Securities into Common Stock or other securities, cash or other property, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3)4.2(3) with respect to any Securities of or within a series, (i) the Company will shall be released from its obligations to comply with any term, provision or condition under Section 9.04 (except 8.1 with respect to clause such Securities (i))and, to the extent specified pursuant to Section 9.05. 3.1, any other restrictive covenant added for the benefit of such Securities) and (ii) unless otherwise specified pursuant to Section 9.07 and 3.1, the occurrence of any event specified in Section 9.09 5.1(7) shall not be deemed to be an Event of Default, in each case on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4), Section 5.1(7) or otherwise, as the case may be, insofar as it relates to Section 8.1 and, to the extent specified pursuant to Section 3.1, any other restrictive covenant added for the benefit of such Security, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby; provided that the obligations of the Company with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 10.4 shall remain unsatisfied only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below; provided, further, that notwithstanding a covenant defeasance with respect to Section 8.1, any Person to whom a sale, assignment, transfer, lease, conveyance or other disposition is made pursuant to Section 8.1, shall as a condition to such sale, assignment, transfer, lease, conveyance or other disposition, assume by an indenture supplemental hereto in form satisfactory to the Trustee, executed by such successor Person and delivered to the Trustee, the obligations of the Company to the Trustee under Section 6.7 and the second to the last paragraph of this Section 4.2.
(4) The following will shall be the conditions to the application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of a series:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.8 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants Independent Registered Public Accounting Firm expressed in a written certification thereof delivered to the Trusteetrustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and interestpremium, if any) and interest or Additional Amounts then determinable, if any, on, on such Outstanding Subordinated Notes on Securities at the Stated Maturity of such principal or installment of principal or interest interest, provided that the Company shall specify whether such Outstanding Securities are being defeased to Stated Maturity or to the Redemption Date and (z) any mandatory sinking fund payments or analogous payments applicable Redemption Date, as to such Outstanding Securities on the case may beday on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (other than an Event of Default resulting from non-compliance with any covenant from which the Company is released upon effectiveness of such defeasance or covenant defeasance, as applicable).
(d) In the case of an election under clause (2) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that:
(i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or
(ii) since the date of execution 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 shall confirm that, subject to customary assumptions and exclusions, the Holders of such Outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, subject to customary assumptions and exclusions, the Holders of such 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.
(f) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(g) If the Securities are to be redeemed prior to their Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made.
(h) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1. The Company shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized Independent Registered Public Accounting Firm expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 2 contracts
Samples: Indenture (JMP Group LLC), Indenture (JMP Group LLC)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, on such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities another issuer, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Section 2.07Sections 3.5, Section 2.093.6, Section 9.02 10.2 and Section 9.0310.3, and with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Sections 10.5 and 10.6, and, to the extent specified pursuant to Section 9.04 (except 3.1(21), any other covenant applicable to such Securities, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.following
Appears in 2 contracts
Samples: Indenture (Cit Group Inc), Indenture (Cit Group Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, each of the Company will and the Guarantor shall be deemed to have been discharged from its their obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will or the Guarantor, as applicable, shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto, and the Guarantee in respect thereof, are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantor, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into Common Stock of the Company or exchange such Securities for securities of the Guarantor or another issuer, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into Common Stock of the Company or exchange such Securities for securities of the Guarantor or another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 6.6 herein and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its their respective obligations under any covenant applicable to such Securities specified in Section 9.04 (except 3.1(19), including any obligation to redeem or repurchase such securities at the option of the Holder thereof, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 the Guarantee in respect thereof, on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenantcovenant or obligation, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 5.1 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto and the Guarantee in respect thereof shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto and the Guarantee in respect thereof:
(a) The Company will or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of with respect to such Securities and interest, if any, on such Subordinated Notesany Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to such Securities and Coupons appertaining thereto (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(b) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 5.1(7) or (8) shall have occurred at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(c) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary is a party or by which it is bound.
(d) In the case of an election under clause (2) of this Section 4.2 with respect to Registered Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or the Guarantor, as the case may be, has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2 with respect to Registered Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) With respect to defeasance only, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company or the Guarantor under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company or the Guarantor issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an “insider”).
(g) With respect to defeasance only, the Company and the Guarantor shall have delivered to the Trustee an Officers’ Certificate and a Guarantor’s Officers’ Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company.
(h) The Company and the Guarantor shall have delivered to the Trustee an Officers’ Certificate, a Guarantor’s Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(i) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Series Authorization, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company and the Guarantor (without duplication) shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, or the Guarantor upon Guarantor Request, as the case may be, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 2 contracts
Samples: Senior Indenture (Renaissancere Holdings LTD), Senior Indenture (Renaissancere Holdings LTD)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (6) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such Holder to convert or exchange such Securities into Common Stock or other securities, cash or other property, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Section 2.073.5, Section 2.093.6, Section 9.02 10.2 and Section 9.0310.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 10.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), and with respect to any rights to convert or exchange such Securities into Common Stock or other securities, cash or other property, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3)4.2(3) with respect to any Securities of or within a series, the Company will shall be released from its obligations under from, to the extent specified pursuant to Section 9.04 (except 3.1, any covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 such Outstanding Securities on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) insofar as it relates to, to the extent specified pursuant to Section 3.1, any covenant applicable to such Security, or Section 5.1(7) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.8 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized independent registered public accounting firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities an the Stated Maturity of such principal or installment of principal or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the applicable Redemption Date, as day on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that:
(i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or
(ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(a) In the case of an election under clause (3) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such 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.
(b) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of establishment of such trust, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith.
(c) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(d) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Subject to the provisions of the last paragraph of Section 10.3, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the “Trustee”) pursuant to clause (4) of Section 4.2 in respect of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.
(6) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized independent registered public accounting firm expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 2 contracts
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and at Unless provision is made pursuant to Section 2.01 with respect to the Notes of any timeseries that defeasance or covenant defeasance under this Section shall not apply to the Notes of such series, elect this Section 12.05 shall be applicable to have Section 3.02(2) or Section 3.02(3) be applied to such the Outstanding Subordinated Notes of all series upon compliance with the conditions set forth below in this Section 3.02below. Legal Defeasance and Covenant Defeasance may be effected only "At the Company's option with respect to allthe Notes of any series, and not less than all, of the Outstanding Subordinated Notes.
either (2a) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under the Outstanding Notes of such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (series and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging satisfaction and discharge of the sameNotes of such series ("DEFEASANCE") or (b) solely insofar as relates to the Notes of such series, the Company shall cease to be under any obligation to comply with the covenants set forth in Sections 16.01 and 16.02 hereof and any failure to comply with such covenants will not constitute an Event of Default with respect to the Notes of such series ("COVENANT defeasance"), except for the following which will survive until otherwise terminated or discharged hereunder: when
(1) either
(A) with respect to all Outstanding Notes of such series, (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will has irrevocably have deposited or caused to be irrevocably deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollarscash (in such currency in which such Outstanding Notes of such series are payable) sufficient to pay and discharge the entire indebtedness of all Outstanding Notes of such series for principal (and premium, (iiif any) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on through the respective Stated Maturities thereof or, if such Subordinated Notesdefeasance or covenant defeasance, money as the case may be, is to be effected in compliance with clause (7) below, the relevant Redemption Date, as the case may be, or (iiiii) a combination thereofthe Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee in trust for the purpose such amount of Government Obligations, in any case, in an amount, sufficient, without consideration of any reinvestment of such maturing as to principal and interestinterest in such amounts and at such times as will (without reinvesting any interest thereon or other proceeds thereof) be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and dischargedischarge the entire indebtedness on all Outstanding Notes of such series for principal (and premium, and which will be applied by the Trustee (or other qualifying trusteeif any) to pay and discharge, the principal of and interest, if any, onthrough the respective Stated Maturities thereof or, if such Outstanding Subordinated Notes on defeasance or covenant defeasance, as the Stated Maturity of such principal or installment of principal or interest or case may be, is to be effected in compliance with clause (7) below, the applicable relevant Redemption Date, as the case may be.be (provided that, if payment of the principal of and premium and interest, if any, on the Notes of such series is to be made through scheduled payments of principal of and interest on Government Obligations that have been deposited as aforesaid, then the applicable scheduled payments of principal and interest on such Government Obligations shall occur not later than one day before the date on which any such payment of principal of or premium or interest, if any, on such Notes is due); or
(B) the Company has effected, and has properly fulfilled the conditions, to the satisfaction and discharge of the Notes of such series pursuant to Section 12.01, including without limitation the deposit with the Trustee of the amounts referred to in clause (b) Such Legal Defeasance of Section 12.01,
(2) the Company has paid or Covenant Defeasance caused to be paid all other sums payable with respect to the Outstanding Notes of such series,
(3) in the case of defeasance, the Company has delivered to the Trustee an opinion of counsel of outside legal counsel of recognized standing stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service, a ruling or (ii) since the date of execution of the Original Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall confirm that, the holders of the Outstanding Notes of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred,
(4) in the case of covenant defeasance, the Company has delivered to the Trustee an opinion of counsel of outside legal counsel of recognized standing stating 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 deposit and covenant defeasance and will be subject to Federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred,
(5) such defeasance or covenant defeasance, as the case may be, shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound,
(6) no Event of Default with respect to the Notes of such series or event which, with notice or lapse of time or both, would become an Event of Default with respect to the Notes of such series shall have occurred and be continuing on the date of such deposit referred to in clause (1)(A) or (1)(B) above, as the case may be, and solely in the case of defeasance no Event of Default with respect to the Company under Sections 6.01(e) or (f) or event which, with notice or lapse of time or both, would become an Event of Default with respect to the Company under Sections 6.01(e) or (f) shall have occurred and be continuing at any time during the period through and including the 91st day after the date of such deposit (it being understood that this condition to defeasance shall not be deemed satisfied until the expiration of such period),
(7) if the monies or Government Obligations deposited under clause (1) above are sufficient to pay the principal of, and premium, if any, and interest, if any, on the Notes of such series provided such Notes are redeemed on a particular Redemption Date, the Company shall have given the Trustee irrevocable instructions to redeem such Notes on such date and to provide notice of such redemption to holders as provided in or pursuant to this Indenture, and
(8) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the defeasance or covenant defeasance, as the case may be, of all Outstanding Notes of such series have been complied with. "Notwithstanding any defeasance of the Notes of any series, the following provisions with respect to the Outstanding Notes of such series shall survive: (i) the rights of holders of such Outstanding Notes to receive, solely (except as provided in clause (ii) below) from the trust fund described in clause (1)(A) or (1)(B), as the case may be, of the preceding paragraph, payment of the principal of (and premium, if any) and interest, if any, on the Notes of such series as and when such principal, and premium and interest, if any, shall become due and payable, (ii) the obligations of the Company and the Trustee with respect to the Notes of such series under Sections 2.07, 2.08, 2.09, 4.02, 4.03, 4.04, 12.02, 12.04, 12.05, 12.06 and 12.07 and, if applicable to the Notes of such series, Section 4.05, any rights of holders of such Notes (unless otherwise provided pursuant to Section 2.01 with respect to the Notes of such series) to require the Company to repurchase or repay, and the obligations of the Company to repurchase or repay, such Notes at the option of the holders pursuant to Sections 3.05 or 3.06 hereof, and any rights of holders of such Notes (unless otherwise provided pursuant to Section 2.01 with respect to the Notes of such series) to convert or exchange, and the obligations of the Company to convert or exchange, such Notes into other securities and (iii) the provisions of Section 7.06 and the other rights, powers, trusts, duties and immunities of the Trustee hereunder. The Company may exercise its option under this Section 12.05 with respect to defeasance with respect to the Notes of any series notwithstanding the prior exercise of its option under this Section 12.05 with respect to covenant defeasance with respect to such Notes. "Notwithstanding any covenant defeasance with respect to the Notes of any series, the remainder of this Indenture (insofar as relates to the Notes of such series and including, without limitation, Section 7.06) and such Notes shall remain in full force and effect and shall be unaffected thereby, and such covenant defeasance shall not have any effect with respect to this Indenture insofar as it relates to any other series of Notes."
(f) Article Twelve of the Original Indenture is hereby amended by adding the following Section 12.06:
Appears in 1 contract
Samples: First Supplemental Indenture (Downey Financial Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, each of the Company will and the Guarantors shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and of the Guarantee in respect thereof on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will and the Guarantors shall be deemed to have paid and discharged the entire indebtedness Debt represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantors, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 6.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.07, 10.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 2.09, Section 9.02 and Section 9.034.2(4)(a) below), (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Section 9.04 (except 10.5 and, to the extent specified pursuant to any indenture supplement, any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 such Outstanding Securities and Section 9.09 any Coupons appertaining thereto on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will or any Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary Guarantor is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of establishment of such trust and, with respect to defeasance only, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2, the Company or any Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or such Guarantor has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company or any Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) The Company or any Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of establishment of such trust, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith.
(g) The Company or any Guarantor shall have delivered to the Trustee an Officers' Certificate or a Guarantor's Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(h) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or any Guarantor in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of Section 4.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, or any Guarantor, as the case may be, upon a Guarantor Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
Samples: Indenture (Cintas Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 9.08 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 1 contract
Samples: Indenture (Bar Harbor Bankshares)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Company Issuer may at its option and by Board Resolution, at any time, elect to have Section 3.02(211.02(b) or Section 3.02(311.02(c) be applied to such Outstanding Subordinated the outstanding Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes11.02.
(2b) Upon the CompanyIssuer’s exercise of the above option applicable to this Section 3.02(211.02(b), the Company will Issuer shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated the outstanding Notes on the date the conditions set forth in clause (4) of this Section 3.02 11.02(b) are satisfied (hereinafter, “Legal Defeasancelegal defeasance”). For this purpose, Legal Defeasance such legal defeasance means that the Company will Issuer shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated the outstanding Notes, which will shall thereafter be deemed to be “Outstandingoutstanding” only for the purposes of Section 3.02(5) Sections 11.03 and 11.04 and the other Sections provisions of this Indenture referred to below in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated the Notes and this Indenture insofar as such Subordinated the Notes are concerned (and the Trustee, at the expense of the CompanyIssuer, will shall execute proper instruments acknowledging the same), except for the following provisions hereof, which will shall survive until otherwise terminated or discharged hereundersuch legal defeasance and remain in full force and effect: (i) the rights of Holders of such Outstanding Subordinated the Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.0311.02(d)(i), payments in respect of the principal of and interest, if any, on, such Subordinated Interest on the Notes when such payments are due, (ii) the obligations provisions of Sections 2.05, 2.06, 2.08, 4.02, 4.03, 4.04, 4.06, 4.07 and 4.09, and this Article 11 (other than Section 11.01), and if the Company Notes will be paid on a Redemption Date, Article 3, and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties obligations and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03hereunder. The Company Issuer may exercise its option under this Section 3.02(211.02(b) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated 11.02(c). Upon the effectiveness of any legal defeasance (but not covenant defeasance), the Guarantor will be released from its Guarantees of the Notes.
(3c) Upon the CompanyIssuer’s exercise of the above option applicable to this Section 3.02(3)11.02(c) with respect to the Notes, the Company will Issuer and the Guarantor shall be released from its their respective obligations under Section 9.04 4.05 to keep in full force and effect its rights (charter and statutory) and franchises (but, for the avoidance of doubt, shall not be released from their respective obligations to do or cause to be done all things necessary to preserve and keep in full force and effect their respective existences (except with respect to clause (ias permitted under Article 10))) and Sections 4.10 through 4.16, Section 9.05. Section 9.07 and Section 9.09 inclusive on and after the date the conditions set forth in Section 3.02(411.02(d) are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated the Notes will shall thereafter be deemed to be not “Outstandingoutstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstandingoutstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that with respect to such Outstanding Subordinated the outstanding Notes, the Company Issuer and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantSection, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 6.01(d) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture Indenture, the Notes and such Subordinated Notes will the Guarantees shall be unaffected thereby.
(4d) The following will shall be the conditions to application the effectiveness of legal defeasance pursuant to Section 3.02(211.02(b) or and covenant defeasance pursuant to Section 3.02(3) to any Outstanding Subordinated Notes:11.02(c):
(ai) The Company will Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of the Notes, (iA) an amount in DollarsU.S. dollars, or (iiB) Government Obligations that which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, Interest on such Subordinated the Notes, money in an amount, or (iiiC) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interestInterest on the Notes (including, if anyany Entitled Securities are outstanding, on, such Outstanding Subordinated Notes the maximum amount of Additional Interest that could be payable on those Entitled Securities pursuant to the Registration Rights Agreement) on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be, in accordance with the terms of this Indenture and the Notes.
(bii) In the case of legal defeasance pursuant to Section 11.02(b), the Issuer shall have delivered to the Trustee an opinion of outside counsel reasonably acceptable to the Trustee stating that (x) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel shall confirm that, the Holders of the 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; or, in the case of covenant defeasance pursuant to Section 11.02(c), the Issuer shall have delivered to the Trustee an opinion of counsel reasonably acceptable to the Trustee to the effect that the Holders of the Notes 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.
(iii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Issuer or any Subsidiary the Guarantor is a party or by which it either of them is bound.
(iv) No Event of Default or event which with notice or lapse of time or both would become an Event of Default shall have occurred and be continuing on the date of such deposit, and no Event of Default or event which with notice or lapse of time or both would become an Event of Default under Section 6.01(g) or 6.01(h) shall have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit.
(v) The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the legal defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.
(vi) If the monies or Government Obligations or combination thereof, as the case may be, deposited under Section 11.02(d)(i) above are sufficient to pay the principal of and Interest on the Notes provided the Notes are redeemed on a particular Redemption Date, the Issuer shall have given the Trustee irrevocable instructions to redeem the Notes on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
(e) The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 11.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Notes.
(f) Anything in this Section 11.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon an Issuer Request any money or Government Obligations (or any proceeds therefrom) held by it as provided in Section 11.02(d)(i) which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a legal defeasance or covenant defeasance, as applicable, in accordance with this Section 11.02.
Appears in 1 contract
Samples: Indenture (Kilroy Realty Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Sections 10.5 and 10.6, and, to the extent specified pursuant to Section 9.04 (except 3.1(19), any other covenant applicable to such Securities, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.8 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 123rd day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 123rd day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith.
(g) The Company shall have delivered to the Trustee an Officer's Certificate and the Company shall have delivered to the Trustee an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(h) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
Samples: Indenture (Safeco Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company Unless pursuant to Section 301, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 402 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 402 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 402 (with such modifications thereto as may be specified pursuant to Section 301 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Issuer may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(2402(2) or Section 3.02(3402(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes402.
(2) Upon the Company’s Issuer's exercise of the above option applicable to this Section 3.02(2)402(2) with respect to any Securities of or within a series, the Company will Issuer shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto, on the date the conditions set forth in clause (4) of this Section 3.02 402 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will Issuer shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 402 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto, are concerned (and the Trustee, at the expense of the CompanyIssuer, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 402 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert or exchange such Securities into Common Stock or other securities, (ii) the obligations of the Company Issuer and the Trustee with respect to such Subordinated Notes Securities under Sections 305, 306, 1002 and 1003 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.071004 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 401(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to exchange such Securities into other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03402. The Company Issuer may exercise its option under this Section 3.02(2402(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 402 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s Issuer's exercise of the above option applicable to this Section 3.02(3)402(3) with respect to any Securities of or within a series, the Company will Issuer shall be released from its obligations under Sections 1005 and 1006, and to the extent specified pursuant to Section 9.04 (except 301, any other covenant applicable to such Securities, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 402 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company Issuer may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 501(4) or 501(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 402 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 607 who will shall agree to comply with the provisions of this Section 3.02 402 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the Stated Maturity of such principal or installment of principal or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as day on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary Issuer is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 402, the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 402, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) The Issuer shall have delivered to the Trustee an Officers' Certificate (if applicable) and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 402 (as the case may be) have been complied with.
(g) Notwithstanding any other provisions of this Section 402(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Issuer in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 402(5) and Section 403, the "Trustee") pursuant to clause (4) of Section 402 in respect of any Outstanding Securities of any series and any Coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any Coupons appertaining thereto and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any Coupons appertaining thereto of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law. Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 402(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 301 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 402(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 402(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon Issuer Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 402 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 402.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will or the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto, and the Guarantee in respect thereof, are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantor, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities of the Guarantor or another issuer, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Sections 10.4 and 16.2 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 2.074.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of the Guarantor or another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its their obligations under Sections 10.5 and 10.6, and, to the extent specified pursuant to Section 9.04 (except 3.1(19), any other covenant applicable to such Securities, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 the Guarantee in respect thereof, on and after the date the conditions set forth in clause(4) of this Section 3.02(4) 4.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1 (4) or 5.1 (9) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto and the Guarantee in respect thereof shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto and the Guarantee in respect thereof:
(a) The Company will or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary the Guarantor is a party or by which it either of them is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 123rd day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or the Guarantor has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) The Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 123rd day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of the Company or the Guarantor under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company or the Guarantor issued in connection therewith.
(g) The Company and the Guarantor shall have delivered to the Trustee an Officer’s Certificate and a Guarantor’s Officer’s Certificate and the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(h) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company and the Guarantor (without duplication) shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, or the Guarantor upon Guarantor Request, as the case may be, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
Samples: Indenture (Ace Ina Holdings Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into Common Stock of the Company or exchange such Securities for other securities, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into Common Stock of the Company or exchange such Securities for other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 6.6 herein and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Section 9.04 (except 10.5 and Section 10.6, and, to the extent specified pursuant to Section 3.1(19), any other covenant applicable to such Securities, including any obligation to redeem or repurchase such securities at the option of the Holder thereof, with respect to clause (i)), Section 9.05. Section 9.07 such Outstanding Securities and Section 9.09 any Coupons appertaining thereto on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenantcovenant or obligation, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 5.1 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of with respect to such Securities and interest, if any, on such Subordinated Notesany Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to such Securities and Coupons appertaining thereto (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(b) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 5.1(7) or (8) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(c) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary is a party or by which it is bound.
(d) In the case of an election under clause (2) of this Section 4.2 with respect to Registered Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2 with respect to Requested Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) With respect to defeasance only, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an "insider").
(g) With respect to defeasance only, the Company shall have delivered to the Trustee an Officers' Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company.
(h) The Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(i) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Series Authorization, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option set forth in Section 3.02(1) applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraphSection 3.02(2), and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder hereunder, including, without limitation, the Company’s obligations to the Trustee under Section 5.07 and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option set forth in Section 3.02(1) applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. , Section 9.06 and Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one calendar day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 1 contract
Samples: Indenture (Veritex Holdings, Inc.)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The If, pursuant to Section 3.01, provision is made for either or both of (i) defeasance of the Securities of or within a series under subsection (b) of this Section 4.02 or (ii) covenant defeasance of the Securities of or within a series under subsection (c) of this Section 4.02, then such provisions, together with the other provisions of this Section 4.02 (with such modifications thereto as may be specified pursuant to Section 3.01 with respect to any Securities), shall be applicable to such Securities, and the Company or the Guarantor may at its option and by Company Order, at any time, with respect to such Securities, and the Guarantees thereof, elect to have Section 3.02(24.02(b) (if applicable) or Section 3.02(34.02(c) (if applicable) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.02.
(2b) Upon the Company’s or the Guarantor’s exercise of the above option applicable to this Section 3.02(2)4.02(b) with respect to any Securities of or within a series and the Guarantees thereof, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and the Guarantor shall be deemed to have been discharged from its obligations with respect to the related Guarantees on the date the conditions set forth in clause subsection (4d) of this Section 3.02 4.02 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated NotesSecurities and the Guarantor shall be deemed to have satisfied all of its obligations under this Indenture and with respect to the Guarantees relating to such Securities, which will and such Securities shall thereafter be deemed to be “Outstanding” only for the purposes of subsection (e) of this Section 3.02(5) 4.02 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and each of the Company and the Guarantor shall be deemed to have satisfied all of its other obligations under such Subordinated Notes Securities, the Guarantees thereof and this Indenture insofar as such Subordinated Notes Securities and the Guarantees thereof are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantor, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities to receive, solely from the trust fund described in subsection (d) of this Section 3.02(4)(a) 4.02 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, on such Subordinated Notes Securities when such payments are due, (ii) the obligations of the Company Company’s and the Trustee Guarantor’s obligations with respect to such Subordinated Notes Securities under Sections 3.06, 3.07, 10.02 and 10.03 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.07, Section 2.09, Section 9.02 and Section 9.0310.04, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.02. The Company or the Guarantor may exercise its option under this Section 3.02(24.02(b) notwithstanding the prior exercise of its option under subsection (c) of this Section 3.02(3) 4.02 with respect to such Subordinated NotesSecurities.
(3c) Upon the Company’s or the Guarantor’s exercise of the above option applicable to this Section 3.02(3)4.02(c) with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its from, if specified pursuant to Section 3.01, their obligations under Section 9.04 (except any other covenant, with respect to clause (i)), Section 9.05. Section 9.07 such Outstanding Securities and Section 9.09 the Guarantees thereof on and after the date the conditions set forth in subsection (d) of this Section 3.02(4) 4.02 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such other covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company and the Guarantor may omit to comply with, with and will shall have no liability in respect of. of any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and the Guarantee thereof shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(2subsection (b) or (c) of this Section 3.02(3) 4.02 to any Outstanding Subordinated NotesSecurities of or within a series:
(ai) The Company will or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.08 who will shall agree to comply with the provisions of this Section 3.02 4.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (iA) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (iiB) U.S. Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities, money in an amount, or (iiiC) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants Independent Public Accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes outstanding Securities on the Stated Maturity of such principal or installment of principal or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the applicable Redemption Date, as day on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities.
(bii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary the Guarantor is a party or by which it is bound.
(iii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of the establishment of such trust and, with respect to legal defeasance only, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iv) In the case of an election under subsection (b) of this Section 4.02, the Company or the Guarantor shall have delivered to the Trustee an opinion of counsel of recognized standing stating that (A) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (B) since the date of execution 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 shall confirm that, the beneficial owners of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such legal defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred.
(v) In the case of an election under subsection (c) of this Section 4.02, the Company or the Guarantor shall have delivered to the Trustee an opinion of counsel of recognized standing to the effect that the beneficial owners of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(vi) The Company or the Guarantor shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under subsection (b) or (c) of this Section 4.02 (as the case may be) have been complied with.
(vii) Such defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all relevant Securities are in default within the meaning of such Act).
(viii) Such defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended and rules and regulations adopted by the Commission thereunder, unless such trust shall be registered under such Act or exempt from registration thereunder.
(ix) Notwithstanding any other provisions of this Section 4.02(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.01.
(e) Subject to the provisions of the last paragraph of Section 10.03, all money and U.S. Government Obligations (or other property as may be provided pursuant to Section 3.01) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.02(e), the “Trustee”) pursuant to subsection (d) of Section 4.02 in respect of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.
(f) Unless otherwise specified with respect to any Security pursuant to Section 3.01, if, after a deposit referred to in Section 4.02(d)(i) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.01 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.02(d)(i) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.02(d)(i) has been made, the indebtedness represented by such Security and the Guarantee thereof shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, and Additional Amounts, if any, on such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, except, with respect to a Conversion Event, for such Foreign Currency in effect at the time of the Conversion Event.
(g) Anything in this Section 4.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company or the Guarantor from time to time upon Company Request any money or U.S. Government Obligations (or other property and any proceeds therefrom) held by it as provided in subsection (d) of this Section 4.02 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.02.
Appears in 1 contract
Samples: Indenture (BBVA International Preferred, S.A. Unipersonal)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and by Board Resolution, at any time, elect to have Section 3.02(28.2(2) or Section 3.02(38.2(3) be applied to such Outstanding Subordinated any series of Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes8.2.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)8.2(2) with respect to a series of Notes, the Company will and the Guarantor shall be deemed to have been discharged from its their obligations with respect to such Outstanding Subordinated series of Notes on the date the conditions set forth in clause (4) of this Section 3.02 8.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notesthe Notes of that series, which will shall thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i), (ii) through and (iv) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Notes, and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of Notes of such Outstanding Subordinated Notes series to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 8.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of and interestinterest (including Additional Interest, if any), on, on the Notes of such Subordinated Notes series when such payments are due, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to the Notes of such Subordinated Notes series under Section 2.07Sections 2.6, Section 2.092.9, Section 9.02 3.2, 3.3 and Section 9.038.3, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.038.2. The Company may exercise its option under this Section 3.02(28.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 8.2 with respect to the Notes of such Subordinated Notesseries.
(3) Upon the Company’s exercise of the above option applicable to have this Section 3.02(3)8.2(3) apply with respect to a series of Notes, the Company will and the Guarantor shall be released from its their respective obligations under Section 9.04 (except 3.6 with respect to clause (i))the Notes of such series, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 8.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and the Notes of such Subordinated Notes will series shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that with respect to such Outstanding Subordinated Notesthat, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any with respect to the Notes of such other covenantseries, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 5.1(3) with respect to such series of Notes but, except as specified above, the remainder of this Indenture and with respect to such Subordinated series of Notes will shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 8.2 to any the Outstanding Subordinated NotesNotes of a particular series:
(a) The Company will or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Notes, (i1) an amount in Dollars, or (ii2) Government Obligations that which through the scheduled payment of principal and interest in respect thereof thereof, in accordance with their terms will provide, not later than one day before the due date of any payment of principal of of, interest on and interestAdditional Amounts, if any, on such Subordinated on, the Notes, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, discharge the principal of and interest, if any, on, interest on such Outstanding Subordinated Notes on at the Stated Maturity of such principal or installment of principal interest, or interest or on the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary the Guarantor is a party or by which it either the Company or the Guarantor is bound.
(c) No Event of Default or event, which with notice or lapse of time or both would become an Event of Default, with respect to the Notes of such series, shall have occurred and be continuing on the date of such deposit.
(d) In the case of an election under clause (2) or (3), as the case may be, of this Section 8.2, the Company shall have (i) delivered to the Trustee an Opinion of Counsel to the effect that the deposit and related defeasance or covenant defeasance, as the case may be, in and by themselves, would not cause the Holders of Notes of such series to recognize income, gain or loss for U.S. federal income tax purposes; provided, that, any such Opinion of Counsel given in the case of an election under clause (2) shall state that it is based on either (A) a letter ruling received by the Company from the U.S. Internal Revenue Service or a Revenue Ruling published by the U.S. Internal Revenue Service or (B) a change in the applicable U.S. federal income tax law since the date of execution of this Indenture, and (ii) either, (a) delivered to the Trustee an Opinion of Counsel to the effect that the deposit and related defeasance or covenant defeasance, as the case may be, in and by themselves, would not cause the Holders of Notes of such series to recognize income, gain or loss for Canadian federal income tax purposes or cause payments under such series of Notes or the applicable Guarantee to be subject to Canadian withholding tax; or (b) indemnified Holders of Notes of such series for income, gain or loss, for Canadian federal income tax purposes and for Canadian withholding tax purposes, as each is directly attributable to such defeasance or covenant defeasance in and by themselves, without limiting the Company’s obligation to pay Additional Amounts as provided under Article 10 hereof.
(e) If the Notes of such series are to be redeemed prior to their Stated Maturity, notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made.
(f) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 8.2 (as the case may be) have been complied with. The Company shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 8.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders. Anything in this Section 8.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company or the Guarantor from time to time upon Company Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 8.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 8.2.
Appears in 1 contract
Samples: Indenture (Cit Group Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.may
Appears in 1 contract
Samples: Indenture (Safeco Corp)
DEFEASANCE AND COVENANT DEFEASANCE. With respect to the Notes only (and not any other series of Securities issued pursuant to the Base Indenture), Section 12.03 of the Base Indenture is replaced in its entirety with the following:
(1) The Company Issuer may at its option and by Board Resolution, at any time, with respect to the Notes, elect to have Section 3.02(23.2(2) or Section 3.02(33.2(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes3.2.
(2) Upon the CompanyIssuer’s exercise of the above option applicable to provided for in this Section 3.02(2)3.2(2) with respect to the Notes and the Guarantees, the Company will Issuer and the Guarantors shall be deemed to have been discharged from its their obligations with respect to such Outstanding Subordinated Notes and Guarantees on the date the conditions set forth in clause (4) of this Section 3.02 3.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will Issuer shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notes, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 3.02(5) 3.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the CompanyIssuer, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receiveNotes, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 3.2 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, on such Subordinated Notes when such payments are due, and any rights of such Holder to exchange such Notes into other securities, (ii) the obligations of the Company Issuer and the Trustee with respect to such Subordinated Notes under Section 2.07Sections 3.01, Section 2.093.06, Section 9.02 3.07, 6.01 and Section 9.036.03 of the Base Indenture, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and under the Base Indenture and (iv) this Section 3.02 and Section 3.033.2. The Company Issuer may exercise its option under this Section 3.02(23.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 3.2 with respect to such Subordinated Notes.
(3) Upon the CompanyIssuer’s exercise of the above option applicable to provided for in this Section 3.02(3)3.2(3) with respect to the Notes and the Guarantees, the Company will Issuer and the Guarantors shall be released from its their obligations under Sections 5.1 to 5.3, inclusive, and Section 9.04 (except 6.05 to 6.08 of the Base Indenture, inclusive, with respect to clause (i))such Outstanding Notes and Guarantees, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 3.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesNotes and Guarantees, the Company Issuer and the Guarantors may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 4.1(3) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 3.2 to any Outstanding Subordinated NotesNotes and Guarantees (as applicable) in respect thereof:
(a) The Company will Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 11.04 of the Base Indenture who will shall agree to comply with the provisions of this Section 3.02 3.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Notes, (i1) an amount in Dollars, or (ii2) Government Obligations that Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated Notes, money in an amount, or (iii3) a combination thereofof (1) and (2), in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, and in the case of (2) and (3), in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on the Stated Maturity Date of such principal or installment of principal or interest or the applicable Redemption Date, as the case may beinterest.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Issuer or any Subsidiary is the Guarantors are a party or by which it any of them is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Notes shall have occurred and be continuing on the date of such deposit (other than a default resulting from the borrowing of funds and the grant of the related liens to be applied to such deposit).
(d) In the case of an election under clause (2) of this Section 3.2, the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of such Outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 3.2, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of 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.
(f) The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 3.2 (as the case may be) and clause (4) of this Section 3.2 have been complied with.
(5) Subject to the provisions of the last paragraph of Section 12.06 of the Base Indenture, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 3.2(5), the “Trustee”) pursuant to clause (4) of Section 3.2 in respect of any Outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to the extent required by law. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 3.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Notes. Anything in this Section 3.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 3.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 3.2.
Appears in 1 contract
Samples: Second Supplemental Indenture (Sl Green Operating Partnership, L.P.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations obligations, and the provisions of Article 16 shall cease to be effective, with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Sections 10.5 and 10.6, and, to the extent specified pursuant to Section 9.04 (except 3.1(19), any other covenant applicable to such Securities, and the provisions of Article 16 shall cease to be effective as it relates to the aforementioned obligations and covenants, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such obligation or covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, or Article, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant covenant, or Article, or by reason of reference in any such Section or such other covenant covenant, or Article, to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.8 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 123rd day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 123rd day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith.
(g) At the time of the deposit, (i) no default in the payment of any principal of, premium, if any, or interest on any Senior Indebtedness shall have occurred and be continuing, (ii) no event of default with respect to any Senior Indebtedness shall have resulted in such Senior Indebtedness becoming, and continuing to be, due and payable prior to the date on which it would otherwise have become due and payable (unless payment of such Senior Indebtedness has been made or duly provided for), and (iii) no other event of default with respect to any Senior Indebtedness shall have occurred and be continuing permitting (after notice or lapse of time or both) the holders of such Senior Indebtedness (or a trustee on behalf of such holders) to declare such Senior Indebtedness due and payable prior to the date on which it would otherwise have become due and payable.
(h) The Company shall have delivered to the Trustee an Officer's Certificate and the Company shall have delivered to the Trustee an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(i) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
Samples: Indenture (Safeco Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company Operating Partnership and the Co-Obligors may at its their option and by Board Resolution, at any time, with respect to the Notes, elect to have Section 3.02(2402(2) or Section 3.02(3402(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes402.
(2) Upon the CompanyOperating Partnership’s or a Co-Obligors’ exercise of the above option applicable to this Section 3.02(2)402(2) with respect to the Notes, each of the Company will Operating Partnership and the Co-Obligors shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 402 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will Operating Partnership and the Co-Obligors shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notes, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 3.02(5) 402 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the CompanyOperating Partnership and the Co-Obligors, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receiveNotes, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 402 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and interestpremium, if any) and Interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes when such payments are due, and any rights of such Holder to exchange such Notes into other securities, (ii) the obligations of the Company Operating Partnership, the Co-Obligors and the Trustee with respect to such Subordinated Notes under Sections 204, 209, 1002 and 1003 and with respect to the payment of Additional Amounts, if any, on such Notes as contemplated by Section 2.071004 (but only to the extent that the Additional Amounts payable with respect to such Notes exceed the amount deposited in respect of such Additional Amounts pursuant to Section 401(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to exchange such Notes into other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03402. The Company Operating Partnership and the Co-Obligors may exercise its their option under this Section 3.02(2402(2) notwithstanding the prior exercise of its their option under clause (3) of this Section 3.02(3) 402 with respect to such Subordinated Notes.
(3) Upon the CompanyOperating Partnership’s or a Co-Obligor’s exercise of the above option applicable to this Section 3.02(3)402(3) with respect to the Notes, each of the Company will Operating Partnership and Co-Obligors shall be released from its their obligations under Section 9.04 (except Sections 1005 to 1011, inclusive, with respect to clause (i))such Outstanding Notes, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 402 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated Notes, the Company Operating Partnership and the Co-Obligors may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 501(3) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 402 to any Outstanding Subordinated NotesNotes in respect thereof:
(a) The Company will Operating Partnership or a Co-Obligor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 607 who will shall agree to comply with the provisions of this Section 3.02 402 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Notes, (i1) an amount in Dollars, or (ii2) Government Obligations that applicable to such Notes, which through the scheduled payment of principal and interest Interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and interestpremium, if any) and Interest, if any, on such Subordinated Notes, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interestInterest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and interestpremium, if any) and Interest, if any, on, on such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may beInterest.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Operating Partnership or any Subsidiary is Co-Obligors are a party or by which it any of them is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Notes shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 402, the Operating Partnership or the applicable Co-Obligor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Operating Partnership or such Co-Obligor, as the case may be, has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 402, the Operating Partnership or the applicable Co-Obligor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Notes will not recognize income, gain or loss for 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.
(f) The Operating Partnership or the applicable Co-Obligor shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 402 (as the case may be) have been complied with.
(5) Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 402(5) and Section 403, the “Trustee”) pursuant to clause (4) of Section 402 in respect of any Outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Operating Partnership or any Co-Obligor acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal (and premium, if any) and Interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law. The Operating Partnership and Co-Obligors shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Notes. Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Operating Partnership and Co-Obligors from time to time upon Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 402 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 402.
Appears in 1 contract
Samples: Indenture (Sl Green Realty Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert or exchange such Securities into Common Stock, Preferred Stock or other securities, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09and with respect to any rights to convert or exchange such Securities into Common Stock, Section 9.02 and Section 9.03Preferred Stock or other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.this
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1) Defeasance and Discharge. The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes the Securities as provided in this Section on and after the date the conditions set forth in clause (4) of this Section 3.02 1203 are satisfied (“Legal hereinafter called "Defeasance”"). For this purpose, Legal such Defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, Securities and to have satisfied all of its other obligations under such Subordinated Notes the Securities and this Indenture insofar as such Subordinated Notes the Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for subject to the following which will shall survive until otherwise terminated or discharged hereunder: (i1) the rights of Holders of such Outstanding Subordinated Notes the Securities to receive, solely from the trust fund described in Section 3.02(4)(a) 1203 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of and interest, if any, on, such Subordinated Notes any premium and interest on the Securities when such payments are due, (ii2) the Company's obligations of the Company and the Trustee with respect to such Subordinated Notes the Securities under Section 2.07Sections 304, Section 2.09305, Section 9.02 306, 1002 and Section 9.031003, (iii3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv4) this Section 3.02 and Section 3.03Article. The Subject to compliance with this Article, the Company may exercise its option under (if any) to have this Section 3.02(2) applied to any Securities notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3if any) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered 1202 applied to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may beSecurities.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 1 contract
Samples: Indenture (Vintage Petroleum Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 12.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 12.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 12.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and the Company and the Guarantor may at its option and their options by their respective Board Resolutions, at any time, with respect to such Securities, elect to have Section 3.02(212.2(b) or Section 3.02(312.2(c) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes12.2.
(2b) Upon the Company’s 's and the Guarantor's exercise of the above option applicable to this Section 3.02(2)12.2(b) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4d) of this Section 3.02 12.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will and the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notes, Securities which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (c) of this Section 3.02(5) 12.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receiveSecurities, solely from the trust fund described in clause (d) of this Section 3.02(4)(a) 12.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such Holder to convert such Securities into Common Stock of the Company or the Guarantor or exchange such Securities for other securities; (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.6, 3.7, 4.2, 4.3 and 12.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.074.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 12.2(d)(1) below), Section 2.09, Section 9.02 and Section 9.03, with respect to any rights to convert such Securities into Common Stock of the Company or the Guarantor or exchange such Securities for other securities; (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 7.6 herein; and (iv) this Section 3.02 and Section 3.0312.2. The Company and the Guarantor may exercise its option under this Section 3.02(212.2(b) notwithstanding the prior exercise of its option under clause (c) of this Section 3.02(3) 12.2 with respect to such Subordinated NotesSecurities.
(3c) Upon the Company’s 's and the Guarantor's exercise of the above option applicable to have this Section 3.02(3)12.2(c) apply with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its their obligations under Section 9.04 (except in respect of any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 such Outstanding Securities on and after the date the conditions set forth in clause (d) of this Section 3.02(4) 12.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenantcovenant or obligation, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 6.1 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(2clause (b) or (c) of this Section 3.02(3) 12.2 to any Outstanding Subordinated NotesSecurities of or within a series:
(ai) The Company will and the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 7.8 who will shall agree to comply with the provisions of this Section 3.02 12.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on with respect to such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to such Securities (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(bii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 6.1(f) or (g) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary is a party or by which it is bound.
(iv) In the case of an election under clause (b) of this Section 12.2 for which the Place of Payment is within the United States, the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(v) In the case of an election under clause (c) of this Section 12.2 with respect to Requested Securities and for which the Place of Payment is within the United States, the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such 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.
(vi) With respect to defeasance only, the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (d) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company or the Guarantor under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company or the Guarantor issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an "insider").
(vii) With respect to defeasance only, the Company and the Guarantor shall have delivered to the Trustee an Officers' Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company or the Guarantor.
(viii) The Company and the Guarantor shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 12.2 (as the case may be) have been complied with.
(ix) Notwithstanding any other provisions of this Section 12.2(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 3.1.
(e) Unless otherwise specified in or pursuant to this Indenture, if, after a deposit referred to in Section 12.2(d)(i) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 12.2(d)(i) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 12.2(d)(i) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company and the Guarantor shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 12.2(d) and Section 12.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 12.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 12.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request or to the Guarantor from time to time upon Guarantor Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) of this Section 12.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 12.2.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1) Defeasance and Discharge. The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will shall be deemed to have been discharged from its obligations obligations, and the provisions of Article Thirteen shall cease to be effective, with respect to such Outstanding Subordinated Notes the Securities as provided in this Section on and after the date the conditions set forth in clause (4) of this Section 3.02 1203 are satisfied (“Legal hereinafter called "Defeasance”"). For this purpose, Legal such Defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, Securities and to have satisfied all of its other obligations under such Subordinated Notes the Securities and this Indenture insofar as such Subordinated Notes the Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for subject to the following which will shall survive until otherwise terminated or discharged hereunder: (i1) the rights of Holders of such Outstanding Subordinated Notes the Securities to receive, solely from the trust fund described in Section 3.02(4)(a) 1203 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of and interest, if any, on, such Subordinated Notes any premium and interest on the Securities when such payments are due, (ii2) the Company's obligations of the Company and the Trustee with respect to such Subordinated Notes the Securities under Section 2.07Sections 303, Section 2.09304, Section 9.02 305, 1002 and Section 9.031003, (iii3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv4) this Section 3.02 and Section 3.03Article. The Subject to compliance with this Article, the Company may exercise its option under (if any) to have this Section 3.02(2) applied to any Securities notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3if any) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered 1202 applied to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may beSecurities.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 1 contract
Samples: Indenture (Vintage Petroleum Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.092.08, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 9.08 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. of any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Subordinated Notes will have occurred and be continuing on the date of such deposit, and, solely in the case of Legal Defeasance under Section 3.02(2), no Event of Default, or event which with notice or lapse of time or both would become an Event of Default, under Section 4.01 will have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit (it being understood that this condition to Legal Defeasance under Section 3.02(2) will not be deemed satisfied until the expiration of such period).
(d) In the case of Legal Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel will confirm that, the Holders of such Outstanding 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.
(e) In the case of Covenant Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding 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.
(f) The Company will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the Legal Defeasance or Covenant Defeasance, as the case may be, under this Indenture have been satisfied.
(g) If the moneys or Government Obligations or combination thereof, as the case may be, deposited under Section 3.02(4)(a) above are sufficient to pay the principal of, and interest, if any, on, such Subordinated Notes provided such Subordinated Notes are redeemed on a particular Redemption Date, the Company will have given the Trustee irrevocable instructions to redeem such Subordinated Notes on such date and to provide notice of such redemption to Holders as provided in or under this Indenture.
(h) The Trustee will have received such other documents, assurances and Opinions of Counsel as the Trustee will have reasonably required in its discretion.
(5) Subject to the provisions of the last paragraph of Section 9.03, all money and Government Obligations deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 3.02(5), the “Trustee”) in accordance with Section 3.02(4)(a) in respect of any Outstanding Subordinated Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Subordinated Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any Subsidiary or Affiliate of the Company acting as Paying Agent) as the Trustee may determine in its discretion, to the Holders of all sums due and to become due thereon in respect of principal and interest but such money and Government Obligations need not be segregated from other funds, except to the extent required by law. The Company will pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited in accordance with this Section 3.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Subordinated Notes.
Appears in 1 contract
Samples: Indenture (Limestone Bancorp, Inc.)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause of this Section 12.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause of this Section 12.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 12.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and the Company may at its option and by Board Resolution, at any time, with respect to such Securities, elect to have Section 3.02(212.2(b) or Section 3.02(312.2(c) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes12.2.
(2b) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)12.2(b) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4d) of this Section 3.02 12.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (c) of this Section 3.02(5) 12.2 and the other Sections of this Indenture referred to in 62 clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receiveSecurities, solely from the trust fund described in clause (d) of this Section 3.02(4)(a) 12.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and interestpremium, if any) and interest (including Additional Interest), if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such Holder to convert such Securities into other Securities of the Company or exchange such Securities for securities of another issuer; (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.6, 3.7, 4.2, 4.3 and 12.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.074.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 12.2(d)(i) below), Section 2.09, Section 9.02 and Section 9.03, with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer; (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 7.6 herein; and (iv) this Section 3.02 and Section 3.0312.2. The Company may exercise its option under this Section 3.02(212.2(b) notwithstanding the prior exercise of its option under clause (c) of this Section 3.02(3) 12.2 with respect to such Subordinated NotesSecurities.
(3c) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)12.2(c) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Section 9.04 (except in respect of any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 such Outstanding Securities on and after the date the conditions set forth in clause (d) of this Section 3.02(4) 12.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenantcovenant or obligation, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 6.1 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(2clause (b) or (c) of this Section 3.02(3) 12.2 to any Outstanding Subordinated NotesSecurities of or within a series:
(ai) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 7.8 who will shall agree to comply with the provisions of this Section 3.02 12.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on with respect to such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and interestpremium, if any) and interest (including any Additional Interest), if any, on, and any Additional Amounts with respect to such Securities (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(bii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 6.1(f) or (g) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary is a party or by which it is bound.
(iv) In the case of an election under clause (b) of this Section 12.2 for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(v) In the case of an election under clause (c) of this Section 12.2 with respect to Requested Securities and for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such 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.
(vi) With respect to defeasance only, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (d) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an "insider").
(vii) With respect to defeasance only, the Company shall have delivered to the Trustee an Officer's Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company.
(viii) The Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 12.2 (as the case may be) have been complied with.
(ix) Notwithstanding any other provisions of this Section 12.2(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(e) Unless otherwise specified in or pursuant to this Indenture, if, after a deposit referred to in Section 12.2(d)(i) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 12.2(d)(i) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 12.2(d)(i) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest (including any Additional Interest), if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 12.2(d) and Section 12.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 12.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 12.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) of this Section 12.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 12.2.
Appears in 1 contract
Samples: Junior Subordinated Indenture (Quanta Capital Holdings LTD)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 12.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 12.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 12.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and the Company may at its option and by Board Resolutions, at any time, with respect to such Securities, elect to have Section 3.02(212.2(b) or Section 3.02(312.2(c) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes12.2.
(2b) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)12.2(b) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its respective obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4d) of this Section 3.02 12.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notes, Securities which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (c) of this Section 3.02(5) 12.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receiveSecurities, solely from the trust fund described in clause (d) of this Section 3.02(4)(a) 12.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, to receive payments in respect of the principal of of, premium (if any) and interestinterest on, and Additional Amounts, if any, on, with respect to such Subordinated Notes Securities when such payments are due, ; (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Section 2.073.6, Section 2.093.8, Section 9.02 3.9, Section 3.11, Section 4.2, Section 4.3, Section 4.9, Section 4.10, Section 5.1 and Section 9.0312.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 4.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 12.2(d)(i) below); (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 7.6 herein; and (iv) this Section 3.02 and Section 3.0312.2. The Company may exercise its option under this Section 3.02(212.2(b) notwithstanding the prior exercise of its option under clause (c) of this Section 3.02(3) 12.2 with respect to such Subordinated Notes.Securities,
(3c) Upon the Company’s exercise of the above option applicable to have this Section 3.02(3)12.2(c) apply with respect to any Securities of or within a series, the Company will shall, to the extent specified pursuant to Section 3.1, be released from its obligations under Section 9.04 (except with respect any covenant applicable to clause (i))such Securities, Section 9.05. Section 9.07 and Section 9.09 such covenants shall cease to be applicable to such Securities on and after the date the conditions set forth in clause (d) of this Section 3.02(4) 12.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act act of Holders (and the consequences of any thereof) in connection with any such covenantcovenant or obligation, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 6.1 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(2clause (b) or (c) of this Section 3.02(3) 12.2 to any Outstanding Subordinated NotesSecurities of or within a series:
(ai) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in Dollars, Dollars or (ii2) Government Obligations that applicable to such Securities which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on with respect to such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of and interestof, premium (if any) and interest on, onand any Additional Amounts with respect to such Securities (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable with respect to such Outstanding Securities on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(bii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 6.1(d) or (e) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary is a party or by which it is bound.
(iv) In the case of an election under clause (b) of this Section 12.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.
(v) In the case of an election under clause (c) of this Section 12.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(vi) With respect to defeasance only, the Company shall have delivered to the Trustee an Officer’s Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company.
(vii) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each certifying that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 12.2 (as the case may be) have been complied with.
(viii) Notwithstanding any other provisions of this Section 12.2(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(e) Unless otherwise specified in or pursuant to this Indenture, if, after a deposit referred to in Section 12.2(d)(i) has been made, the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a currency other than that in which the deposit pursuant to Section 12.2(d)(i) has been made in respect of such Security, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of, premium (if any) and interest on, and Additional Amounts, if any, with respect to such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the currency in which such Security becomes payable as a result of such election based on the applicable market exchange rate for such currency in effect on the second Business Day prior to each payment date. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 12.2(e) and Section 12.3, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 12.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 12.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) of this Section 12.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 12.2.
Appears in 1 contract
Samples: Indenture (Sirius International Insurance Group, Ltd.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations obligations, and the provisions of Article 17 shall cease to be effective, with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Sections 10.5 and 10.6, and, to the extent specified pursuant to Section 9.04 (except 3.1(19), any other covenant applicable to such Securities, and the provisions of Article 17 shall cease to be effective as it relates to the aforementioned obligations and covenants, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such obligation or covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, or Article, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant covenant, or Article, or by reason of reference in any such Section or such other covenant covenant, or Article, to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.8 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 123rd day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 123rd day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith.
(g) At the time of the deposit, (i) no default in the payment of any principal of, premium, if any, or interest on any Senior Indebtedness shall have occurred and be continuing, (ii) no event of default with respect to any Senior Indebtedness shall have resulted in such Senior Indebtedness becoming, and continuing to be, due and payable prior to the date on which it would otherwise have become due and payable (unless payment of such Senior Indebtedness has been made or duly provided for), and (iii) no other event of default with respect to any Senior Indebtedness shall have occurred and be continuing permitting (after notice or lapse of time or both) the holders of such Senior Indebtedness (or a trustee on behalf of such holders) to declare such Senior Indebtedness due and payable prior to the date on which it would otherwise have become due and payable.
(h) The Company shall have delivered to the Trustee an Officer's Certificate and the Company shall have delivered to the Trustee an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(i) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
Samples: Indenture (Safeco Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The ---------------------------------- Company may may, at its option and by Board Resolution which shall be delivered to the Trustee, at any time, with respect to the outstanding Notes and the Note Guarantees, elect to have Section 3.02(2either paragraph (b) or Section 3.02(3paragraph (c) below be applied to such Outstanding Subordinated the outstanding Notes and the Note Guarantees upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notesparagraph (d).
(2b) Upon the Company’s 's exercise under paragraph (a) of the above option applicable to this Section 3.02(2paragraph (b), each of the Company will and any Note Guarantor shall be deemed to have been released and discharged from its respective obligations with respect to such Outstanding Subordinated the outstanding Notes and the Note Guarantees on the date the conditions set forth in clause (4) of this Section 3.02 below are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.,
(3c) Upon the Company’s 's exercise under paragraph (a) of the above option applicable to this Section 3.02(3paragraph (c), the Company will shall be released and discharged from its obligations under Section 9.04 (except any covenant contained in Sections 4.03 through 4.20 with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 the outstanding Notes on and after the date the conditions set forth in Section 3.02(4) below are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated the Notes will shall thereafter be deemed to be not “Outstanding” "outstanding" for the purposes purpose of any direction, waiver, consent or declaration or Act act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.connection
(4d) The following will shall be the conditions to application of Section 3.02(2either paragraph (b) or Section 3.02(3paragraph (c) above to any Outstanding Subordinated the outstanding Notes:
: (ai) The the Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 7.11 who will shall agree to comply with the provisions of this Section 3.02 8.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Notes, (ix) an amount cash in Dollars, or (iiy) U.S. Government Obligations that through the scheduled payment of principal maturing as to principal, premium, if any, and interest in respect thereof in accordance with their terms will providesuch amounts of money and at such times as are sufficient without consideration of any reinvestment of such interest, to pay principal of, premium, if any, and interest on the outstanding Notes on the Stated Maturity or relevant Redemption Date of such principal or installment of interest not later than one day before the due date of any payment of principal of and interestpayment, if any, on such Subordinated Notes, money or (iiiz) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, discharge and which will shall be applied by the Trustee (or other qualifying trustee) to pay and dischargedischarge principal of, the principal of and interestpremium, if any, on, such Outstanding Subordinated and interest on the outstanding Notes on the Stated Maturity Date or Redemption Date or otherwise in accordance with the terms of this Indenture and of such principal Notes; provided that the Trustee shall have received an irrevocable written order from the Company instructing the Trustee (or installment of principal or interest other qualifying trustee) to apply such money or the applicable Redemption Date, as proceeds of such U.S. Government Obligations to said payments with respect to the Notes; (ii) in the case may be.
of an election under paragraph (b) Such Legal Defeasance above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or Covenant Defeasance there has been published by, the Internal Revenue Service a ruling, which ruling must be referred to, or (y) 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 shall 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 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 defeasance had not occurred; (iii) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel 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 sub ject 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 covenantdefeasance had not occurred; (iv) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or, insofar as Events of Default specified in Section 6.01(viii) or (ix) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period); (v) such defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest with respect to any securities of the Company or any Note Guarantor; (vi) such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default Default or Event of Default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary Note Guarantor is a party or by which it is bound; (vii) the Company shall have delivered to the trustee an Opinion of Counsel stating that (A) the trust funds will not be subject to any rights of holders of Senior Indebtedness, including, without limitation, those arising under this Indenture, and (B) after the 91st day following the deposit or after the date such Opinion of Counsel is delivered, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally; and (viii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each satisfactory in form and substance to the Trustee, stating that all conditions precedent provided for relating to either the defeasance under paragraph
(b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with.
Appears in 1 contract
Samples: Indenture (Telegroup Inc)
DEFEASANCE AND COVENANT DEFEASANCE. With respect to the Notes only (and not any other series of Securities issued pursuant to the Base Indenture), Section 12.03 of the Base Indenture is replaced in its entirety with the following:
(1) The Company Issuer may at its option and by Board Resolution, at any time, with respect to the Notes, elect to have Section 3.02(23.2(2) or Section 3.02(33.2(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes3.2.
(2) Upon the CompanyIssuer’s exercise of the above option applicable to provided for in this Section 3.02(2)3.2(2) with respect to the Notes and the Guarantees, the Company will Issuer and the Guarantors shall be deemed to have been discharged from its their obligations with respect to such Outstanding Subordinated Notes and Guarantees on the date the conditions set forth in clause (4) of this Section 3.02 3.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will Issuer shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notes, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 3.02(5) 3.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the CompanyIssuer, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receiveNotes, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 3.2 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, on such Subordinated Notes when such payments are due, and any rights of such Holder to exchange such Notes into other securities, (ii) the obligations of the Company Issuer and the Trustee with respect to such Subordinated Notes under Section 2.07Sections 3.01, Section 2.093.06, Section 9.02 3.07, 6.01 and Section 9.036.03 of the Base Indenture, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and under the Base Indenture and (iv) this Section 3.02 and Section 3.033.2. The Company Issuer may exercise its option under this Section 3.02(23.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 3.2 with respect to such Subordinated Notes.
(3) Upon the CompanyIssuer’s exercise of the above option applicable to provided for in this Section 3.02(3)3.2(3) with respect to the Notes and the Guarantees, the Company will Issuer and the Guarantors shall be released from its their obligations under Sections 5.1 to 5.3, inclusive, and Section 9.04 (except 6.05 to 6.08 of the Base Indenture, inclusive, with respect to clause (i))such Outstanding Notes and Guarantees, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 3.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesNotes and Guarantees, the Company Issuer and the Guarantors may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 4.1(3) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 3.2 to any Outstanding Subordinated NotesNotes and Guarantees (as applicable) in respect thereof:
(a) The Company will Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 11.04 of the Base Indenture who will shall agree to comply with the provisions of this Section 3.02 3.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Notes, (i1) an amount in Dollars, or (ii2) Government Obligations that Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated Notes, money in an amount, or (iii3) a combination thereofof (1) and (2), in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, and in the case of (2) and (3), in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may beinterest.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Issuer or any Subsidiary is the Guarantors are a party or by which it any of them is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Notes shall have occurred and be continuing on the date of such deposit (other than a default resulting from the borrowing of funds and the grant of the related liens to be applied to such deposit).
(d) In the case of an election under clause (2) of this Section 3.2, the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of such Outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 3.2, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of 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.
(f) The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 3.2 (as the case may be) and clause (4) of this Section 3.2 have been complied with.
(5) Subject to the provisions of the last paragraph of Section 12.06 of the Base Indenture, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 3.2(5), the “Trustee”) pursuant to clause (4) of Section 3.2 in respect of any Outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to the extent required by law. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 3.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Notes. Anything in this Section 3.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 3.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 3.2.
Appears in 1 contract
Samples: First Supplemental Indenture (Sl Green Operating Partnership, L.P.)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Company Issuer may at its option and by Board Resolution, at any time, elect to have Section 3.02(211.02(b) or Section 3.02(311.02(c) be applied to such Outstanding Subordinated the outstanding Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes11.02.
(2b) Upon the CompanyIssuer’s exercise of the above option applicable to this Section 3.02(211.02(b), the Company will Issuer shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated the outstanding Notes on the date the conditions set forth in clause (4) of this Section 3.02 11.02(b) are satisfied (hereinafter, “Legal Defeasancelegal defeasance”). For this purpose, Legal Defeasance such legal defeasance means that the Company will Issuer shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated the outstanding Notes, which will shall thereafter be deemed to be “Outstandingoutstanding” only for the purposes of Section 3.02(5) Sections 11.03 and 11.04 and the other Sections provisions of this Indenture referred to below in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated the Notes and this Indenture insofar as such Subordinated the Notes are concerned (and the Trustee, at the expense of the CompanyIssuer, will shall execute proper instruments acknowledging the same), except for the following provisions hereof, which will shall survive until otherwise terminated or discharged hereundersuch legal defeasance and remain in full force and effect: (i) the rights of Holders of such Outstanding Subordinated the Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.0311.02(d)(i), payments in respect of the principal of and interest, if any, on, such Subordinated Interest on the Notes when such payments are due, (ii) the obligations provisions of Sections 2.05, 2.06, 2.08, 4.02, 4.03, 4.04 and 4.06, and this Article 11 (other than Section 11.01), and if the Company Notes will be paid on a Redemption Date, Article 3, and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties obligations and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03hereunder. The Company Issuer may exercise its option under this Section 3.02(211.02(b) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated 11.02(c). Upon the effectiveness of any legal defeasance (but not covenant defeasance), the Guarantor will be released from its Guarantees of the Notes.
(3c) Upon the CompanyIssuer’s exercise of the above option applicable to this Section 3.02(3)11.02(c) with respect to the Notes, the Company will Issuer and the Guarantor shall be released from its their respective obligations under Section 9.04 4.05 to keep in full force and effect its rights (charter and statutory) and franchises (but, for the avoidance of doubt, shall not be released from their respective obligations to do or cause to be done all things necessary to preserve and keep in full force and effect their respective existences (except with respect to clause (ias permitted under Article 10))) and Sections 4.08 through 4.14, Section 9.05. Section 9.07 and Section 9.09 inclusive on and after the date the conditions set forth in Section 3.02(411.02(d) are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated the Notes will shall thereafter be deemed to be not “Outstandingoutstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstandingoutstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that with respect to such Outstanding Subordinated the outstanding Notes, the Company Issuer and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantSection, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 6.01(d) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture Indenture, the Notes and such Subordinated Notes will the Guarantees shall be unaffected thereby.
(4d) The following will shall be the conditions to application the effectiveness of legal defeasance pursuant to Section 3.02(211.02(b) or and covenant defeasance pursuant to Section 3.02(3) to any Outstanding Subordinated Notes:11.02(c):
(ai) The Company will Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of the Notes, (iA) an amount in DollarsU.S. dollars, or (iiB) Government Obligations that which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, Interest on such Subordinated the Notes, money in an amount, or (iiiC) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Interest on the Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be, in accordance with the terms of this Indenture and the Notes.
(bii) In the case of legal defeasance pursuant to Section 11.02(b), the Issuer shall have delivered to the Trustee an opinion of outside counsel reasonably acceptable to the Trustee stating that (x) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel shall confirm that, the Holders of the 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; or, in the case of covenant defeasance pursuant to Section 11.02(c), the Issuer shall have delivered to the Trustee an opinion of counsel reasonably acceptable to the Trustee to the effect that the Holders of the Notes 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.
(iii) Such Legal Defeasance legal defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Issuer or any Subsidiary the Guarantor is a party or by which it either of them is bound.
(iv) No Event of Default or event which with notice or lapse of time or both would become an Event of Default shall have occurred and be continuing on the date of such deposit, and no Event of Default or event which with notice or lapse of time or both would become an Event of Default under Section 6.01(g) or 6.01(h) shall have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit.
(v) The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the legal defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.
(vi) If the monies or Government Obligations or combination thereof, as the case may be, deposited under Section 11.02(d)(i) above are sufficient to pay the principal of and Interest on the Notes provided the Notes are redeemed on a particular Redemption Date, the Issuer shall have given the Trustee irrevocable instructions to redeem the Notes on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
(e) The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 11.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Notes.
(f) Anything in this Section 11.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon an Issuer Request any money or Government Obligations (or any proceeds therefrom) held by it as provided in Section 11.02(d)(i) which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a legal defeasance or covenant defeasance, as applicable, in accordance with this Section 11.02.
Appears in 1 contract
Samples: Indenture (Kilroy Realty, L.P.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated NotesSecurities, which will shall thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such Holder to convert or exchange such Securities into Common Stock or other securities, cash or other property, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Section 2.073.4, Section 2.093.5, Section 9.02 3.6, Section 10.2 and Section 9.0310.3 and the obligations of the Company with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 10.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), and with respect to any rights to convert or exchange such Securities into Common Stock or other securities, cash or other property, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3)4.2(3) with respect to any Securities of or within a series, (i) the Company will shall be released from its obligations to comply with any term, provision or condition under Section 9.04 (except 8.1 with respect to clause such Securities (i))and, to the extent specified pursuant to Section 9.05. 3.1, any other restrictive covenant added for the benefit of such Securities) and (ii) unless otherwise specified pursuant to Section 9.07 and 3.1, the occurrence of any event specified in Section 9.09 5.1(7) shall not be deemed to be an Event of Default, in each case on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4), Section 5.1(7) or otherwise, as the case may be, insofar as it relates to Section 8.1 and, to the extent specified pursuant to Section 3.1, any other restrictive covenant added for the benefit of such Security, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby; provided that the obligations of the Company with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 10.4 shall remain unsatisfied only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below; provided, further, that notwithstanding a covenant defeasance with respect to Section 8.1, any Person to whom a sale, assignment, transfer, lease, conveyance or other disposition is made pursuant to Section 8.1, shall as a condition to such sale, assignment, transfer, lease, conveyance or other disposition, assume by an indenture supplemental hereto in form satisfactory to the Trustee, executed by such successor Person and delivered to the Trustee, the obligations of the Company to the Trustee under Section 6.7 and the second to the last paragraph of Section 4.2.
(4) The following will shall be the conditions to the application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of a series:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.8 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants Independent Registered Public Accounting Firm expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and interestpremium, if any) and interest or Additional Amounts then determinable, if any, on, on such Outstanding Subordinated Notes on Securities at the Stated Maturity of such principal or installment of principal or interest interest, provided that the Company shall specify whether such Outstanding Securities are being defeased to Stated Maturity or to the Redemption Date and (z) any mandatory sinking fund payments or analogous payments applicable Redemption Date, as to such Outstanding Securities on the case may beday on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (other than an Event of Default resulting from non-compliance with any covenant from which the Company is released upon effectiveness of such defeasance or covenant defeasance, as applicable).
(d) In the case of an election under clause (2) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that:
(i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or
(ii) since the date of execution 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 shall confirm that, subject to customary assumptions and exclusions, the Holders of such Outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, subject to customary assumptions and exclusions, the Holders of such 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.
(f) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(g) If the Securities are to be redeemed prior to their Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made.
(h) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1. The Company shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized Independent Registered Public Accounting Firm expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
Samples: Indenture (Delcath Systems Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into Common Stock or exchange such Securities for other securities, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into Common Stock or exchange such Securities for other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Sections 10.5 and 10.6, and, to the extent specified pursuant to Section 9.04 (except 3.1(19), any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 such Outstanding Securities and Section 9.09 any Coupons appertaining thereto on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(9) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 123rd
Appears in 1 contract
Samples: Indenture (Homeside Lending Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Company may may, at its option and by Board Resolution which shall be delivered to the Trustee, at any time, with respect to the outstanding Notes and the Note Guarantees, elect to have Section 3.02(2either paragraph (b) or Section 3.02(3paragraph (c) below be applied to such Outstanding Subordinated the outstanding Notes and the Note Guarantees upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notesparagraph (d).
(2b) Upon the Company’s 's exercise under paragraph (a) of the above option applicable to this Section 3.02(2paragraph (b), each of the Company will and any Note Guarantor shall be deemed to have been released and discharged from its respective obligations with respect to such Outstanding Subordinated the outstanding Notes and the Note Guarantees on the date the conditions set forth in clause (4) of this Section 3.02 below are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated the then outstanding Notes, which will shall thereafter be deemed to be “Outstanding” "outstanding" only for the purposes of Section 3.02(5para- graph (e) below and the other Sections of and matters under this Indenture referred to in clauses (i) through and (ivii) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), and Holders of the Notes and the Note Guarantees and any amounts deposited under paragraph (d) below shall cease to be subject to any obligations to, or the rights of, any holder of Senior Indebtedness or Guarantor Senior Indebtedness under Articles Ten, Eleven or otherwise, except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated outstanding Notes to receive, receive solely from the trust fund described in Section 3.02(4)(aparagraph (d) below and as more fully set forth in this Section 3.02 and Section 3.03such paragraph, payments in respect of the principal of and interestof, premium, if any, on, and interest on such Subordinated Notes when such payments are due, (ii) the Company's obligations of the Company and the Trustee with respect to such Subordinated Notes under Sections 2.06, 2.07 and 4.02, and, with respect to the Trustee, under Section 2.07, Section 2.09, Section 9.02 7.08 and Section 9.03any Note Guarantor's obligations in respect thereof, (iii) the rights, powers, trusts, duties duties, indemnities and immunities of the Trustee hereunder and (iv) this Section 3.02 8.02 and Section 3.038.05. The Subject to compliance with this Section 8.02, the Company may exercise its option under this Section 3.02(2paragraph (b) notwithstanding the prior exercise of its option under Section 3.02(3paragraph (c) below with respect to such Subordinated the Notes.
(3c) Upon the Company’s 's exercise under para graph (a) of the above option applicable to this Section 3.02(3paragraph (c), the Company will shall be released and discharged from its obligations obli- gations under Section 9.04 (except any covenant contained in Sections 4.03 through 4.20 with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 the outstanding Notes on and after the date the conditions set forth in Section 3.02(4) below are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated the Notes will shall thereafter be deemed to be not “Outstanding” "outstanding" for the purposes purpose of any direction, waiver, consent or declaration or Act act of Holders (and the consequences of any thereof) in connection with any such covenantcovenants, but will shall continue to be deemed “Outstanding” "outstanding" for all other purposes hereunderhereunder and Holders of the Notes and the Note Guarantees and any amounts deposited under paragraph (d) below shall cease to be subject to any obligations to, or the rights of, any holder of Senior Indebtedness or Guarantor Senior Indebtedness under Articles Ten, Eleven or otherwise. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated the outstanding Notes, the Company and any Note Guarantor may omit to comply with, with and will shall have no liability in respect of. of any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of any reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultDefault or an Event of Default under Article Six, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will shall be unaffected thereby. In addition, in the event covenant defeasance occurs, the Events of Default specified in Sections 6.01(v), (vi) or (vii) will no longer constitute Events of Default with respect to the Notes.
(4d) The following will shall be the conditions to application of Section 3.02(2either paragraph (b) or Section 3.02(3paragraph (c) above to any Outstanding Subordinated the outstanding Notes:
(ai) The the Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 7.11 who will shall agree to comply with the provisions of this Section 3.02 8.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Notes, (ix) an amount cash in Dollars, or (iiy) U.S. Government Obligations that through the scheduled payment of principal maturing as to principal, premium, if any, and interest in respect thereof in accordance with their terms will providesuch amounts of money and at such times as are sufficient without consideration of any reinvestment of such interest, to pay principal of, premium, if any, and interest on the outstanding Notes on the Stated Maturity or relevant Redemption Date of such principal or installment of interest not later than one day before the due date of any payment of principal of and interestpayment, if any, on such Subordinated Notes, money or (iiiz) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, discharge and which will shall be applied by the Trustee (or other qualifying trustee) to pay and dischargedischarge principal of, the principal of and interestpremium, if any, on, such Outstanding Subordinated and interest on the outstanding Notes on the Stated Maturity Date or Redemption Date or otherwise in accordance with the terms of this Indenture and of such principal Notes; provided that the Trustee shall have received an irrevocable written order from the Company instructing the Trustee (or installment of principal or interest other qualifying trustee) to apply such money or the applicable Redemption Date, as proceeds of such U.S. Government Obli- gations to said payments with respect to the Notes;
(ii) in the case may be.
of an election under paragraph (b) Such Legal Defeasance above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or Covenant Defeasance there has been published by, the Internal Revenue Service a ruling, which ruling must be referred to, or (y) 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 shall 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 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 xxxxx- xxxxx had not occurred;
(iii) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel 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 sub- ject 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;
(iv) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or, insofar as Events of Default specified in Section 6.01(ix) or (x) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(v) such defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest with respect to any securities of the Company or any Note Guarantor;
(vi) such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default Default or Event of Default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary Note Guarantor is a party or by which it is bound;
(vii) the Company shall have delivered to the trustee an Opinion of Counsel stating that (A) the trust funds will not be subject to any rights of holders of Senior Indebtedness, including, without limitation, those arising under this Indenture, and (B) after the 91st day following the deposit or after the date such Opinion of Counsel is delivered, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally; and
(viii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each satisfactory in form and substance to the Trustee, stating that all conditions precedent provided for relating to either the defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with.
(e) All cash in Dollars and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any Affiliate of the Company) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal, premium, if any, and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. Anything in this Section 8.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request, in writing, by the Company any cash in Dollars or U.S. Government Obligations held by it as provided in paragraph (d) above which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 1 contract
Samples: Indenture (BCB Bancorp Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Sections 10.5 and 10.6, and, to the extent specified pursuant to Section 9.04 (except 3.1(19), any other covenant applicable to such Securities with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, covenant whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.8 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 123rd day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 123rd day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith.
(g) The Company shall have delivered to the Trustee an Officer's Certificate and the Company shall have delivered to the Trustee an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(h) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
Samples: Indenture (Safeco Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated NotesSecurities, which will shall thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such Holder to convert or exchange such Securities into Common Stock or other securities, cash or other property, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Section 2.073.4, Section 2.093.5, Section 9.02 3.6, Section 10.2 and Section 9.0310.3 and the obligations of the Company with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 10.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), and with respect to any rights to convert or exchange such Securities into Common Stock or other securities, cash or other property, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3)4.2(3) with respect to any Securities of or within a series, (i) the Company will shall be released from its obligations to comply with any term, provision or condition under Section 9.04 (except 8.1 with respect to clause such Securities (i))and, to the extent specified pursuant to Section 9.05. 3.1, any other covenant added for the benefit of such Securities) and (ii) unless otherwise specified pursuant to Section 9.07 and 3.1, the occurrence of any event specified in Section 9.09 5.1(8) shall not be deemed to be an Event of Default, in each case on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4), Section 5.1(8) or otherwise, as the case may be, insofar as it relates to Section 8.1 and, to the extent specified pursuant to Section 3.1, any other covenant added for the benefit of such Security, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby; provided that the obligations of the Company with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 10.4 shall remain unsatisfied only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below; provided, further, that notwithstanding a covenant defeasance with respect to Section 8.1, any Person to whom a sale, assignment, transfer, lease, conveyance or other disposition is made pursuant to Section 8.1, shall as a condition to such sale, assignment, transfer, lease, conveyance or other disposition, assume by an indenture supplemental hereto in form satisfactory to the Trustee, executed by such successor Person and delivered to the Trustee, the obligations of the Company to the Trustee under Section 6.7 and the second to the last paragraph of Section 4.2.
(4) The following will shall be the conditions to the application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of a series:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.8 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants Independent Registered Public Accounting Firm expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and interestpremium, if any) and interest or Additional Amounts then determinable, if any, on, on such Outstanding Subordinated Notes on Securities at the Stated Maturity of such principal or installment of principal or interest interest, provided that the Company shall specify whether such Outstanding Securities are being defeased to Stated Maturity or to the Redemption Date and (z) any mandatory sinking fund payments or analogous payments applicable Redemption Date, as to such Outstanding Securities on the case may beday on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (other than an Event of Default resulting from non-compliance with any covenant from which the Company is released upon effectiveness of such defeasance or covenant defeasance, as applicable).
(d) In the case of an election under clause (2) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that:
(i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or
(ii) since the date of execution 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 shall confirm that, subject to customary assumptions and exclusions, the Holders of such Outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, subject to customary assumptions and exclusions, the Holders of such 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.
(f) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(g) If the Securities are to be redeemed prior to their Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made.
(h) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1. The Company shall pay and indemnify the Trustee against any tax, fee or other charge (including the fees and expenses of its counsel), imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized Independent Registered Public Accounting Firm expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
Samples: Indenture (Aptargroup, Inc.)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Company Unless, pursuant to Section 2.1, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 12.5 or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 12.5 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 12.5 (with such modifications thereto as may be specified pursuant to Section 2.1 with respect to any Securities), shall be applicable to such Securities, and the Corporation may at its option and by Resolution of the Corporation, at any time, with respect to such Securities, elect to have Section 3.02(212.5(b) or Section 3.02(312.5(c) be applied to such Outstanding Subordinated Notes outstanding Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes12.5.
(2b) Upon the CompanyCorporation’s exercise of the above option applicable to this Section 3.02(2)12.5(b) with respect to any Securities of or within a series, the Company will Corporation shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes outstanding Securities on the date the conditions set forth in clause (4d) of this Section 3.02 12.5 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will Corporation shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notesoutstanding Securities, which will shall thereafter be deemed to be “Outstandingoutstanding” only for the purposes of clause (e) of this Section 3.02(5) 12.5 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the U.S. Trustee, at the expense of the CompanyCorporation, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders holders of such Outstanding Subordinated Notes outstanding Securities to receive, solely from the trust fund described in clause (d) of this Section 3.02(4)(a) 12.5 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Interest, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such holder to convert or exchange such Securities into Capital Stock or other securities, (ii) the obligations of the Company Corporation and the U.S. Trustee with respect to such Subordinated Notes Securities under Sections 2.5, 2.7, 4.2 and 12.4, with respect to the payment of Additional Interest, if any, on such Securities (but only to the extent that the Additional Interest payable with respect to such Securities exceeds the amount deposited in respect of such Additional Interest pursuant to Section 2.0712.5(d)(i) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert or exchange such Securities into Capital Stock or other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee Trustees hereunder (including under Section 7.6) and (iv) this Section 3.02 and Section 3.0312.5. The Company Corporation may exercise its option under this Section 3.02(212.5(b) notwithstanding the prior exercise of its option under clause (c) of this Section 3.02(3) 12.5 with respect to such Subordinated NotesSecurities.
(3c) Upon the CompanyCorporation’s exercise of the above option applicable to this Section 3.02(3)12.5(c) with respect to any Securities of or within a series, the Company will Corporation shall be released from its obligations under any covenant applicable to such Securities specified pursuant to Section 9.04 (except 2.1(t), with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 such outstanding Securities on and after the date the conditions set forth in clause (d) of this Section 3.02(4) 12.5 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities shall thereafter be deemed to be not “Outstandingoutstanding” for the purposes of any direction, waiver, consent or declaration or Act act of Holders holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstandingoutstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated Notesoutstanding Securities, the Company Corporation may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 6.1(c) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(2clause (b) or (c) of this Section 3.02(3) 12.5 to any Outstanding Subordinated Notesoutstanding Securities of or within a series:
(ai) The Company will Corporation shall irrevocably have deposited or caused to be deposited with the U.S. Trustee (or another trustee satisfying the requirements of Section 5.08 7.9 who will shall agree to comply with the provisions of this Section 3.02 12.5 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holdersholders of such Securities, (i1) an amount in Dollars, or (ii2) Government Obligations that applicable to such Securities which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants that is nationally recognized in the United States expressed in a written certification thereof delivered to the U.S. Trustee, to pay and discharge, and which will shall be applied by the U.S. Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and, to the extent that such Outstanding Subordinated Notes on Securities provide for the payment of Additional Interest thereon and the amount of any such Additional Interest is at the time of deposit reasonably determinable by the Corporation (in the exercise by the Corporation of its sole and absolute discretion), any Additional Interest with respect to, such outstanding Securities to and including the Stated Maturity of such principal or installment of principal or interest or the redemption date established pursuant to clause (iv) below, if any, and (z) any mandatory sinking fund payments or analogous payments applicable Redemption Date, as to such outstanding Securities on the case may beday on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities.
(bii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary Corporation is a party or by which it is bound.
(iii) Solely in the case of an election under clause (b) of this Section 12.5, no Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iv) If the Securities are to be redeemed prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the U.S. Trustee shall have been made.
(v) The Corporation shall have delivered to the U.S. Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 12.5 (as the case may be) have been complied with.
(vi) (A) The Corporation shall have delivered to the U.S. Trustee an Opinion of Counsel to the effect that beneficial owners of such Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Corporation’s exercise of its option under clause (b) or (c) of this Section 12.5, and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would have been the case if such defeasance or covenant defeasance had not occurred, which Opinion of Counsel must be based, solely in the case of a defeasance under clause (b) of this Section 12.5, upon a ruling of the U.S. Internal Revenue Service to the same effect or a change in applicable federal income tax law or related treasury regulations after the date of this Indenture. Notwithstanding the foregoing, the Opinion of Counsel required with respect to a legal defeasance need not be delivered if all of the Securities not theretofore delivered to the U.S. 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 U.S. Trustee for the giving of notice of redemption by the U.S. Trustee in the name, and at the expense, of the Corporation; and (B) the Corporation shall have delivered to the U.S. Trustee either an Opinion of Counsel in Canada or a ruling from the Canada Revenue Agency, in each case, confirming that the holders of such Securities will not recognize income, gain or loss for Canadian federal income tax purposes as a result of such discharge and defeasance or covenant defeasance and will be subject to Canadian federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such discharge and defeasance or covenant defeasance had not occurred.
(vii) Notwithstanding any other provisions of this Section 12.5(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Corporation in connection therewith pursuant to Section 2.1.
(e) Subject to the provisions of Section 7.5, all money and Government Obligations (or other property as may be provided pursuant to Section 2.1) (including the proceeds thereof) deposited with the U.S. Trustee (or other qualifying trustee, collectively for purposes of this Section 12.5(e), the “Trustee”) pursuant to clause (d) of Section 12.5 in respect of any outstanding Securities of any series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Corporation acting as its own Paying Agent) as the Trustee may determine, to the holders of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Interest, if any, but such money need not be segregated from other funds except to the extent required by law. The Corporation shall pay and indemnify the Trustee against any tax, or fee or other charge, in each case, imposed by a governmental authority, imposed on or assessed against the Government Obligations deposited pursuant to this Section 12.5 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of or in respect of the holders of such outstanding Securities. Anything in this Section 12.5 to the contrary notwithstanding, the Trustee shall deliver or pay to the Corporation from time to time upon request by the Corporation any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) of this Section 12.5 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 12.5. Any trustee appointed pursuant to Section 12.5(d)(i) for the purpose of holding money or Government Obligations deposited pursuant to that Subsection shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein to the related defeasance or covenant defeasance have been complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee. If the Trustee (or other qualifying trustee) is unable to apply any money or Government Obligations in accordance with Section 12.2 or 12.5, as applicable, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Corporation’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 12.1 or 12.5 until such time as the Trustee (or other qualifying trustee) is permitted to apply all such money or Government Obligations in accordance with Section 12.2 or 12.5, as applicable; provided, however, that if the Corporation has made any payment of principal of or any premium or interest on any Securities because of the reinstatement of its obligations, the Corporation shall be subrogated to the rights of the holders of such Securities to receive such payment from the money or Government Obligations held by the Trustee (or other qualifying trustee).
Appears in 1 contract
Samples: Senior Indenture (Algonquin Power & Utilities Corp.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into Common Stock or exchange such Securities for other securities, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into or exchange for other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Sections 10.5 and 10.6, and, to the extent specified pursuant to Section 9.04 (except 3.1(19), any other covenant applicable to such Securities, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 123rd day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 123rd day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith.
(g) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(h) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of Independent Public Accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
Samples: Indenture (Cox Radio Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 12.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 12.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 12.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and the Company and the Guarantor may at its option and their options by their respective Board Resolutions, at any time, with respect to such Securities, elect to have Section 3.02(212.2(b) or Section 3.02(312.2(c) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes12.2.
(2b) Upon the Company’s and the Guarantor’s exercise of the above option applicable to this Section 3.02(2)12.2(b) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4d) of this Section 3.02 12.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will and the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notes, Securities which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (c) of this Section 3.02(5) 12.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receiveSecurities, solely from the trust fund described in clause (d) of this Section 3.02(4)(a) 12.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such Holder to convert such Securities into Common Stock of the Company or the Guarantor or exchange such Securities for other securities; (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.6, 3.7, 4.2, 4.3 and 12.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.074.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 12.2(d)(1) below), Section 2.09, Section 9.02 and Section 9.03, with respect to any rights to convert such Securities into Common Stock of the Company or the Guarantor or exchange such Securities for other securities; (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 7.6 herein; and (iv) this Section 3.02 and Section 3.0312.2. The Company and the Guarantor may exercise its option under this Section 3.02(212.2(b) notwithstanding the prior exercise of its option under clause (c) of this Section 3.02(3) 12.2 with respect to such Subordinated NotesSecurities.
(3c) Upon the Company’s and the Guarantor’s exercise of the above option applicable to have this Section 3.02(3)12.2(c) apply with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its their obligations under Section 9.04 (except in respect of any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 such Outstanding Securities on and after the date the conditions set forth in clause (d) of this Section 3.02(4) 12.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenantcovenant or obligation, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 6.1 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(2clause (b) or (c) of this Section 3.02(3) 12.2 to any Outstanding Subordinated NotesSecurities of or within a series:
(ai) The Company will and the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 7.8 who will shall agree to comply with the provisions of this Section 3.02 12.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on with respect to such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to such Securities (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(bii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 6.1(f) or (g) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary is a party or by which it is bound.
(iv) In the case of an election under clause (b) of this Section 12.2 for which the Place of Payment is within the United States, the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(v) In the case of an election under clause (c) of this Section 12.2 with respect to Requested Securities and for which the Place of Payment is within the United States, the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such 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.
(vi) With respect to defeasance only, the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (d) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company or the Guarantor under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company or the Guarantor issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an “insider”).
(vii) With respect to defeasance only, the Company and the Guarantor shall have delivered to the Trustee an Officers’ Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company or the Guarantor.
(viii) The Company and the Guarantor shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 12.2 (as the case may be) have been complied with.
(ix) Notwithstanding any other provisions of this Section 12.2(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 3.1.
(e) Unless otherwise specified in or pursuant to this Indenture, if, after a deposit referred to in Section 12.2(d)(i) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 12.2(d)(i) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 12.2(d)(i) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company and the Guarantor shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 12.2(d) and Section 12.3, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 12.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 12.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request or to the Guarantor from time to time upon Guarantor Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) of this Section 12.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 12.2.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series Section 12.2(b) shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under Section 12.2(c) shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 12.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and the Company may at its option and by Board Resolution, at any time, with respect to such Securities, elect to have Section 3.02(212.2(b) or Section 3.02(312.2(c) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes12.2.
(2b) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)12.2(b) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4Section 12.2(d) of this Section 3.02 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, Securities which will shall thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(512.2(c) and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities to receive, solely from the trust fund described in Section 3.02(4)(a12.2(d) and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such Holder to convert such Securities into Common Stock of the Company or exchange such Securities for other securities; (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.7, 3.8, 4.2, 4.3 and 12.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.074.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 12.2(d)(i)), Section 2.09, Section 9.02 and Section 9.03, with respect to any rights to convert such Securities into Common Stock of the Company or exchange such Securities for other securities; (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 7.6 herein; and (iv) this Section 3.02 and Section 3.0312.2. The Company may exercise its option under this Section 3.02(212.2(b) notwithstanding the prior exercise of its option under Section 3.02(312.2(c) with respect to such Subordinated NotesSecurities.
(3c) Upon the Company’s exercise of the above option applicable to have this Section 3.02(3)12.2(c) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Section 9.04 (except in respect of any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 such Outstanding Securities on and after the date the conditions set forth in Section 3.02(412.2(d) are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenantcovenant or obligation, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 6.1 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(212.2(b) or Section 3.02(3(c) to any Outstanding Subordinated NotesSecurities of or within a series:
(ai) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 7.8 who will shall agree to comply with the provisions of this Section 3.02 12.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on with respect to such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to such Securities (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(bii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 6.1(e), (f), (g) or (h) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary is a party or by which it is bound.
(iv) In the case of an election under Section 12.2(b) for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the beneficial owners of such Outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(v) In the case of an election under Section 12.2(c) with respect to Requested Securities and for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of such 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.
(vi) With respect to defeasance only, the Company shall have delivered to the Trustee an Officer’s Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company.
(vii) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under Section 12.2(b) or (c) (as the case may be) have been complied with.
(viii) Notwithstanding any other provisions of this Section 12.2(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(e) Unless otherwise specified in or pursuant to this Indenture, if, after a deposit referred to in Section 12.2(d)(i) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 12.2(d)(i) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 12.2(d)(i) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 12.2(d) and Section 12.3, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 12.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 12.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 12.2(d) which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 12.2.
Appears in 1 contract
Samples: Indenture (National Grid PLC)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under Section 4.2(2) shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under Section 4.2(3) shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4Section 4.2(4) of this Section 3.02 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Debt represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of Section 3.02(54.2(5) and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will Company shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in Section 3.02(4)(a4.2(4) and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 6.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.07, 10.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 2.09, Section 9.02 and Section 9.034.2(4)(a) below), (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under Section 3.02(34.2(3) with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Section 9.04 (except 10.5 and, to the extent specified pursuant to any indenture supplement, any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 such Outstanding Securities and Section 9.09 any Coupons appertaining thereto on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(24.2(2) or Section 3.02(34.2(3) to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of establishment of such trust and, with respect to defeasance only, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of establishment of such trust, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to Section 4.2(4) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith.
(g) The Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under Section 4.2(2) or Section 4.2(3) (as the case may be) have been complied with.
(h) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of Section 4.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
Samples: Indenture (Meridian Bioscience Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will or the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto, and the Guarantee in respect thereof, are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantor, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and interestpremium, if any) and interest (including any Additional Interest), if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities of the Guarantor or another issuer, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Sections 10.4 and 17.2 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 2.074.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of the Guarantor or another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its their obligations under any covenant applicable to such Securities specified pursuant to Section 9.04 (except 3.1(20), with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 the Guarantee in respect thereof, on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.all
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Company may may, at its option and by Board Resolution which shall be delivered to the Trustee, at any time, with respect to the outstanding Notes and the Note Guarantees, elect to have Section 3.02(2either paragraph (b) or Section 3.02(3paragraph (c) below be applied to such Outstanding Subordinated the outstanding Notes and the Note Guarantees upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notesparagraph (d).
(2b) Upon the Company’s 's exercise under paragraph (a) of the above option applicable to this Section 3.02(2paragraph (b), each of the Company will and any Note Guarantor shall be deemed to have been released and discharged from its respective obligations with respect to such Outstanding Subordinated the outstanding Notes and the Note Guarantees on the date the conditions set forth in clause (4) of this Section 3.02 below are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated the then outstanding Notes, which will shall thereafter be deemed to be “Outstanding” "outstanding" only for the purposes of Section 3.02(5paragraph (e) below and the other Sections of and matters under this Indenture referred to in clauses (i) through and (ivii) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), and Holders of the Notes and the Note Guarantees and any amounts deposited under paragraph (d) below shall cease to be subject to any obligations to, or the rights of, any holder of Senior Indebtedness or Guarantor Senior Indebtedness under Articles Ten, Eleven or otherwise, except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated outstanding Notes to receive, receive solely from the trust fund described in Section 3.02(4)(aparagraph (d) below and as more fully set forth in this Section 3.02 and Section 3.03such paragraph, payments in respect of the principal of and interestof, premium, if any, on, and interest on such Subordinated Notes when such payments are due, (ii) the Company's obligations of the Company and the Trustee with respect to such Subordinated Notes under Sections 2.06, 2.07 and 4.02, and, with respect to the Trustee, under Section 2.07, Section 2.09, Section 9.02 7.08 and Section 9.03any Note Guarantor's obligations in respect thereof, (iii) the rights, powers, trusts, duties duties, indemnities and immunities of the Trustee hereunder and (iv) this Section 3.02 8.02 and Section 3.038.05. The Subject to compliance with this Section 8.02, the Company may exercise its option under this Section 3.02(2paragraph (b) notwithstanding the prior exercise of its option under Section 3.02(3paragraph (c) below with respect to such Subordinated the Notes.
(3c) Upon the Company’s 's exercise under paragraph (a) of the above option applicable to this Section 3.02(3paragraph (c), the Company will shall be released and discharged from its obligations under Section 9.04 (except any covenant contained in Sections 4.03 through 4.20 with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 the outstanding Notes on and after the date the conditions set forth in Section 3.02(4) below are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated the Notes will shall thereafter be deemed to be not “Outstanding” "outstanding" for the purposes purpose of any direction, waiver, consent or declaration or Act act of Holders (and the consequences of any thereof) in connection with any such covenantcovenants, but will shall continue to be deemed “Outstanding” "outstanding" for all other purposes hereunderhereunder and Holders of the Notes and the Note Guarantees and any amounts deposited under paragraph (d) below shall cease to be subject to any obligations to, or the rights of, any holder of Senior Indebtedness or Guarantor Senior Indebtedness under Articles Ten, Eleven or otherwise. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated the outstanding Notes, the Company and any Note Guarantor may omit to comply with, with and will shall have no liability in respect of. of any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of any reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultDefault or an Event of Default under Article Six, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will shall be unaffected thereby. In addition, in the event covenant defeasance occurs, the Events of Default specified in Sections 6.01(v), (vi) or (vii) will no longer constitute Events of Default with respect to the Notes.
(4d) The following will shall be the conditions to application of Section 3.02(2either paragraph (b) or Section 3.02(3paragraph (c) above to any Outstanding Subordinated the outstanding Notes:
(ai) The the Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 7.11 who will shall agree to comply with the provisions of this Section 3.02 8.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Notes, (ix) an amount cash in Dollars, or (iiy) U.S. Government Obligations that through the scheduled payment of principal maturing as to principal, premium, if any, and interest in respect thereof in accordance with their terms will providesuch amounts of money and at such times as are sufficient without consideration of any reinvestment of such interest, to pay principal of, premium, if any, and interest on the outstanding Notes on the Stated Maturity or relevant Redemption Date of such principal or installment of interest not later than one day before the due date of any payment of principal of and interestpayment, if any, on such Subordinated Notes, money or (iiiz) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, discharge and which will shall be applied by the Trustee (or other qualifying trustee) to pay and dischargedischarge principal of, the principal of and interestpremium, if any, on, such Outstanding Subordinated and interest on the outstanding Notes on the Stated Maturity Date or Redemption Date or otherwise in accordance with the terms of this Indenture and of such principal Notes; provided that the Trustee shall have received an irrevocable written order from the Company instructing the Trustee (or installment of principal or interest other qualifying trustee) to apply such money or the applicable Redemption Date, as proceeds of such U.S. Government Obligations to said payments with respect to the Notes;
(ii) in the case may be.
of an election under paragraph (b) Such Legal Defeasance above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or Covenant Defeasance there has been published by, the Internal Revenue Service a ruling, which ruling must be referred to, or (y) 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 shall 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 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 defeasance had not occurred;
(iii) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel 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;
(iv) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or, insofar as Events of Default specified in Section 6.01(ix) or (x) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(v) such defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest with respect to any securities of the Company or any Note Guarantor;
(vi) such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default Default or Event of Default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary Note Guarantor is a party or by which it is bound;
(vii) the Company shall have delivered to the trustee an Opinion of Counsel stating that (A) the trust funds will not be subject to any rights of holders of Senior Indebtedness, including, without limitation, those arising under this Indenture, and (B) after the 91st day following the deposit or after the date such Opinion of Counsel is delivered, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally; and
(viii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each satisfactory in form and substance to the Trustee, stating that all conditions precedent provided for relating to either the defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with.
(e) All cash in Dollars and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any Affiliate of the Company) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal, premium, if any, and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. Anything in this Section 8.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request, in writing, by the Company any cash in Dollars or U.S. Government Obligations held by it as provided in paragraph (d) above which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will or the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto, and the Guarantee in respect thereof, are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantor, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and with respect to any rights of redemption pursuant to Article 11 and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities of the Guarantor or another issuer, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 4.3, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Sections 10.4 and 16.2 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 2.074.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of the Guarantor or another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its their obligations under Sections 10.5 and 10.6, and, to the extent specified pursuant to Section 9.04 (except 3.1(19), any other covenant applicable to such Securities, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 the Guarantee in respect thereof, on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or (6) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto and the Guarantee in respect thereof shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto and the Guarantee in respect thereof:
(a) The Company will or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.6 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity or Redemption Date therefor, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity or Redemption Date therefor) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Date, as days on which such payments are due and payable in accordance with the case may beterms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture (other than a default resulting from the incurrence of Indebtedness all or a portion of the proceeds of which will be used to defease such security pursuant to Section 4.2 concurrently with such incurrence or any other material agreement or instrument to which the Company or any Subsidiary the Guarantor is a party or by which it either of them is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, shall have occurred at any time during the period ending on the 91st day after the date of such deposit and shall be necessary on such 91st day (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or the Guarantor has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) The Company and the Guarantor shall have delivered to the Trustee an Officer's Certificate and a Guarantor's Officer's Certificate and the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(g) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company and the Guarantor (without duplication) shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, or the Guarantor upon Guarantor Request, as the case may be, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
Samples: Indenture (Delhaize America Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause of this Section 12.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause of this Section 12.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 12.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and the Company may at its option and by Board Resolution, at any time, with respect to such Securities, elect to have Section 3.02(212.2(b) or Section 3.02(312.2(c) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes12.2.
(2b) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)12.2(b) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4d) of this Section 3.02 12.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (c) of this Section 3.02(5) 12.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receiveSecurities, solely from the trust fund described in clause (d) of this Section 3.02(4)(a) 12.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and interestpremium, if any) and interest (including Additional Interest), if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such Holder to convert such Securities into other Securities of the Company or exchange such Securities for securities of another issuer; (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.6, 3.7, 4.2, 4.3 and 12.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.074.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 12.2(d)(i) below), Section 2.09, Section 9.02 and Section 9.03, with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer; (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 7.6 herein; and (iv) this Section 3.02 and Section 3.0312.2. The Company may exercise its option under this Section 3.02(212.2(b) notwithstanding the prior exercise of its option under clause (c) of this Section 3.02(3) 12.2 with respect to such Subordinated NotesSecurities.
(3c) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)12.2(c) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Section 9.04 (except in respect of any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 such Outstanding Securities on and after the date the conditions set forth in clause (d) of this Section 3.02(4) 12.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenantcovenant or obligation, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 6.1 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(2clause (b) or (c) of this Section 3.02(3) 12.2 to any Outstanding Subordinated NotesSecurities of or within a series:
(ai) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 7.8 who will shall agree to comply with the provisions of this Section 3.02 12.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on with respect to such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and interestpremium, if any) and interest (including any Additional Interest), if any, on, and any Additional Amounts with respect to such Securities (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(bii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 6.1(f) or (g) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary is a party or by which it is bound.
(iv) In the case of an election under clause (b) of this Section 12.2 for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(v) In the case of an election under clause (c) of this Section 12.2 with respect to Requested Securities and for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such 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.
(vi) With respect to defeasance only, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (d) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an "insider").
(vii) With respect to defeasance only, the Company shall have delivered to the Trustee an Officer's Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company.
(viii) The Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 12.2 (as the case may be) have been complied with. 77
(ix) Notwithstanding any other provisions of this Section 12.2(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(e) Unless otherwise specified in or pursuant to this Indenture, if, after a deposit referred to in Section 12.2(d)(i) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 12.2(d)(i) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 12.2(d)(i) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest (including any Additional Interest), if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 12.2(d) and Section 12.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 12.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 12.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) of this Section 12.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 12.2.
Appears in 1 contract
Samples: Junior Subordinated Indenture (Endurance Specialty Holdings LTD)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.this
Appears in 1 contract
Samples: Indenture (Ace Ina Holdings Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under clauses (ii) and (iii) of Section 9.04 (except with respect to clause (i))and under Section 9.05, Section 9.05. Section 9.07 9.06 and Section 9.09 9.08 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Subordinated Notes will have occurred and be continuing on the date of such deposit, and, solely in the case of Legal Defeasance under Section 3.02(2), no Event of Default, or event which with notice or lapse of time or both would become an Event of Default, under Section 4.01 will have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit (it being understood that this condition to Legal Defeasance under Section 3.02(2) will not be deemed satisfied until the expiration of such period).
(d) In the case of Legal Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel will confirm that, the Holders of such Outstanding 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.
(e) In the case of Covenant Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding 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.
(f) The Company will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the Legal Defeasance or Covenant Defeasance, as the case may be, under this Indenture have been satisfied.
(g) If the moneys or Government Obligations or combination thereof, as the case may be, deposited under Section 3.02(4)(a) above are sufficient to pay the principal of, and interest, if any, on, such Subordinated Notes provided such Subordinated Notes are redeemed on a particular Redemption Date, the Company will have given the Trustee irrevocable instructions to redeem such Subordinated Notes on such date and to provide notice of such redemption to Holders as provided in or under this Indenture.
(h) The Trustee will have received such other documents, assurances and Opinions of Counsel as the Trustee will have reasonably required.
(5) Subject to the provisions of the last paragraph of Section 9.03, all money and Government Obligations deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 3.02(5), the “Trustee”) in accordance with Section 3.02(4)(a) in respect of any Outstanding Subordinated Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Subordinated Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any Subsidiary or Affiliate of the Company acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in respect of principal and interest but such money and Government Obligations need not be segregated from other funds, except to the extent required by law. The Company will pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited in accordance with this Section 3.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Subordinated Notes.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Company may may, at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance respective obligations of the Company and Covenant Defeasance may be effected only the Guarantors discharged with respect to all, the outstanding Securities and not less than all, the Guarantees (a "defeasance") by fulfilling the applicable conditions of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”1201(b). For this purpose, Legal Defeasance Such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notesthe outstanding Securities, which will thereafter and the Company and the Guarantors shall be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its their respective other obligations under such Subordinated Notes the Securities, the Guarantees and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following following, which will shall survive until unless otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes outstanding Securities to receive, solely from the trust fund described in Section 3.02(4)(aSections 1201(b) and as more fully set forth in this Section 3.02 and Section 3.031202, payments in respect of the principal of and interestof, premium, if any, on, and interest on such Subordinated Notes Securities when such payments are due, (ii) the obligations of the Company Company's and the Trustee Guarantors' respective obligations with respect to such Subordinated Notes under the Securities concerning issuing temporary Securities (Section 2.07208), registration of transfer or exchange of Securities (Section 2.09206), mutilated, destroyed, lost or stolen Securities (Section 9.02 207) and the maintenance of an office or agency for payment (Section 9.03902) and money for security payments held in trust (Section 903), (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder set forth in Arti- cles Five and Six and (iv) the defeasance provisions of this Section 3.02 and Section 3.03Article Twelve. The In addition, the Company may exercise may, at its option under this Section 3.02(2) notwithstanding and at any time, elect to have the prior exercise respective obligations of its option under Section 3.02(3) the Company and the Guarantors released with respect to such Subordinated Notes.
any covenants contained in Sections 701, 904, 905, 906, 907, 908, 909, 910, 911, 912, 913, 914, 915, 916, 917 and 918 (3a "covenant defeasance") Upon by fulfilling the Company’s exercise applicable provisions of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(41201(b) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will Securities shall thereafter be deemed not to be not “Outstanding” outstanding for the purposes of any direction, waiver, consent or consent, declaration or Act any other act or action of the Holders (and the consequences of any thereof) taken or to be taken in connection with any of such covenantcovenants, but will shall continue to be deemed “Outstanding” outstanding for all other purposes hereunder. For this purpose, purpose such Covenant Defeasance covenant defeasance means that with respect re spect to such Outstanding Subordinated Notes, outstanding Securities that the Company and the Guarantors may omit to comply with, with and will shall have no liability in respect of. of any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document document, and such omission to comply will with any such term, condition or limitation shall not constitute a defaultDefault or an Event of Default with respect to the Securities. In the event covenant defeasance occurs, but, except the events described in clauses (4) and (5) (as it applies to the covenants listed in the foregoing sentence) of Section 401 shall no longer constitute Events of Default with respect to the Securities. Except as specified above, the remainder of this Indenture Indenture, the Securities and such Subordinated Notes will the Guarantees shall be unaffected therebyby such covenant defeasance.
(4b) The following will shall be the conditions to application of this Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes1201:
(ai) The the Company will irrevocably shall have deposited or caused to be deposited irrevocably with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds funds, in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of the Securities, (i) an amount cash in DollarsU.S. dollars, (ii) non-callable United States Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provideObligations, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, amount sufficient without consideration reinvestment of any reinvestment of interest received on such principal and interestfunds, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest(premium, if any, on, such Outstanding Subordinated Notes ) and each installment of interest on the outstanding Securities on the Stated Maturity (including upon redemption) of such principal or installment of principal interest;
(ii) in the case of defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States stating that (A) the Company has received from, or interest there has been published by, the Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable Redemption Datefederal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such 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 may be.if such defea sance had not occurred;
(biii) Such Legal Defeasance in the case of covenant defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States to the effect that the Holders of the outstanding Securities will not recognize income, gain or Covenant Defeasance 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;
(iv) no Default or Event of Default shall have occurred and be continuing on the date of such deposit;
(v) such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary Guarantor is a party or by which it is bound;
(vi) in the case of defeasance or covenant defeasance the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that after the 91st day (or such other applicable date) following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally and that such defeasance or covenant defeasance will not result in the Trustee or the trust arising from such deposit constituting an Investment Company as defined in the Investment Company Act of 1940, as amended; and
(vii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance or the covenant defeasance, as the case may be, have been complied with.
(c) Notwithstanding defeasance or covenant defeasance in accordance with this Section 1201, the obligations of the Trustee under Section 1202 shall survive. -90-
Appears in 1 contract
Samples: Indenture (Tultex Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1) SECTION 1501Company’s Option to Effect Defeasance or Covenant Defeasance. The Company may elect, at its option and at any time, elect to have Section 3.02(2) 1502 or Section 3.02(3) be 1503 applied to any Securities or any series of Securities, as the case may be, designated pursuant to Section 301 as being defeasible pursuant to such Outstanding Subordinated Notes Section 1502 or 1503, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced in or pursuant to a Board Resolution or in another manner specified as contemplated by Section 3.02301 for such Securities. Legal Defeasance SECTION 1502Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Discharge. Upon the Company’s exercise of the above its option applicable (if any) to have this Section 3.02(2)applied to any Securities or any series of Securities, as the case may be, the Company will shall be deemed to have been discharged from its obligations, and each Subsidiary Guarantor shall be deemed to have been discharged from its obligations with respect to its Subsidiary Guarantee of such Outstanding Subordinated Notes Securities, as provided in this Section on and after the date the conditions set forth in clause (4) of this Section 3.02 1504 are satisfied (herein called “Legal Defeasance”). For this purpose, Legal such Defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, Securities and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for subject to the following which will shall survive until otherwise terminated or discharged hereunder: (i1) the rights of Holders of such Outstanding Subordinated Notes Securities to receive, solely from the trust fund described in Section 3.02(4)(a) 1504 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of and interest, if any, on, any premium and interest on such Subordinated Notes Securities when such payments are due, or, if applicable, to convert such Securities in accordance with their terms, (ii2) the Company’s and each Subsidiary Guarantor’s obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Section 2.07Sections 304, Section 2.09305, Section 9.02 306, 1002 and Section 9.031003, and, if applicable, their obligations with respect to the conversion of such Securities, (iii3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv4) this Section 3.02 and Section 3.03Article. The Subject to compliance with this Article, the Company may exercise its option under (if any) to have this Section 3.02(2) applied to any Securities notwithstanding the prior exercise of its option under (if any) to have Section 3.02(3) with respect 1503 applied to such Subordinated Notes.
(3) Securities. SECTION 1503Covenant Defeasance. Upon the Company’s exercise of the above its option applicable (if any) to have this Section 3.02(3)applied to any Securities or any series of Securities, as the case may be, (1) the Company will shall be released from its obligations under Section 9.04 801(3), Sections 1005 through 1008, inclusive, and any covenants provided pursuant to Section 301(21), 901(2) or 901(7) for the benefit of the Holders of such Securities, and (except 2) the occurrence of any event specified in Sections 501(5) (with respect to clause (iany of Section 801(3), Sections 1006 through 1008, inclusive, and any such covenants provided pursuant to Section 301(21), 901(2) or 901(7)), 501(6), 501(7), 501(10) and 501(11) shall be deemed not to be or result in an Event of Default and (3) the provisions of Article Thirteen shall cease to be effective, in each case with respect to such Securities and Subsidiary Guarantees as provided in this Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) 1504 are satisfied (herein called “Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company and the Subsidiary Guarantors, as applicable, may omit to comply with, with and will shall have no liability in respect of. of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 501(5)) or any such other covenantArticle Thirteen, whether directly or indirectly, indirectly by reason of any reference elsewhere herein to any such Section or such other covenant Article or by reason of any reference in any such Section or such other covenant Article to any other provision herein or in any other document and such omission to comply will not constitute a defaultdocument, but, except as specified above, but the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4) . SECTION 1504Conditions to Defeasance or Covenant Defeasance. The following will shall be the conditions to the application of Section 3.02(2) 1502 or Section 3.02(3) 1503 to any Outstanding Subordinated NotesSecurities or any series of Securities, as the case may be:
(a1) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying which satisfies the requirements of contemplated by Section 5.08 who will agree 609 and agrees to comply with the provisions of this Section 3.02 Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit benefits of the HoldersHolders of such Securities, (iA) money in an amount in Dollarsamount, or (iiB) U.S. Government Obligations that which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notespayment, money in an amount, or (iiiC) a combination thereof, in any case, in an amount, each case sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, any premium and interest on such Outstanding Subordinated Notes Securities on the respective Stated Maturity Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or installment interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1502 apply to any Securities or the applicable Redemption Dateany series of Securities, as the case may be, 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 date of this instrument, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Defeasance were not to occur.
(b3) In the event of an election to have Section 1503 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers’ Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 501(7) and (8), at any time on or prior to the 121st day after the date of 49
(6) Such Legal Defeasance or Covenant Defeasance will shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(8) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that such deposit shall not cause either the Trustee or the trust so created to be subject to the Investment Company Act of 1940.
(9) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1) Section 1301 Defeasance and Discharge. The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will Guarantors shall be deemed to have been discharged from its their respective obligations with respect to such Outstanding Subordinated the Notes and related Guarantees as provided in this Section 1301 on and after the date the conditions set forth in clause (4) of this Section 3.02 1303 are satisfied (hereinafter called “Legal Defeasance”). For this purpose, Legal such Defeasance means that each of the Company will and the Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) Notes and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, Guarantees and to have satisfied all of its other obligations under such Subordinated the Notes and Guarantees and this Indenture insofar as such Subordinated the Notes and Guarantees are concerned (and the Trustee, at the expense of the CompanyCompany or the Guarantors, will as the case may be, shall execute proper instruments acknowledging the same), except for subject to the following which will shall survive until otherwise terminated or discharged hereunder: (i1) the rights of Holders of such Outstanding Subordinated the Notes to receive, solely from the trust fund described in Section 3.02(4)(a) 1303 and as more fully set forth in this such Section 3.02 and Section 3.031304, payments in respect of the principal of and interestpremium, if any, on, such Subordinated and interest on the Notes when such payments are due, (ii2) the Company’s obligations of with respect to the Company Notes and the Trustee Guarantors’ obligations with respect to such Subordinated Notes Guarantees under Section 2.07Sections 208, Section 2.09210, Section 9.02 403 and Section 9.03404, (iii3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv4) this Section 3.02 and Section 3.03Article XIII. The Subject to compliance with this Article XIII, the Company may exercise its option under option, if any, to have this Section 3.02(2) 1301 applied to the Notes and the Guarantees notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interestoption, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to have Section 1302 applied to the Trustee, to pay Notes and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may beGuarantees.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 1 contract
Samples: Indenture (Ares Management Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Unless, pursuant to Section 2.1, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 12.5 or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 12.5 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 12.5 (with such modifications thereto as may be specified pursuant to Section 2.1 with respect to any Securities), shall be applicable to such Securities, and the Company may at its option and by Company Resolution, at any time, with respect to such Securities, elect to have Section 3.02(212.5(b) or Section 3.02(312.5(c) be applied to such Outstanding Subordinated Notes outstanding Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes12.5.
(2b) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)12.5(b) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes outstanding Securities on the date the conditions set forth in clause (4d) of this Section 3.02 12.5 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notesoutstanding Securities, which will shall thereafter be deemed to be “Outstandingoutstanding” only for the purposes of clause (e) of this Section 3.02(5) 12.5 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the CompanyCompany , will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders holders of such Outstanding Subordinated Notes outstanding Securities to receive, solely from the trust fund described in clause (d) of this Section 3.02(4)(a) 12.5 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Interest, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such holder to convert or exchange such Securities into Equity Securities or other securities, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 2.5, 2.7, 4.2 and 12.4, with respect to the payment of Additional Interest, if any, on such Securities (but only to the extent that the Additional Interest payable with respect to such Securities exceeds the amount deposited in respect of such Additional Interest pursuant to Section 2.0712.5(d)(i) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert or exchange such Securities into Equity Securities or other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder (including under Section 7.6) and (iv) this Section 3.02 and Section 3.0312.5. The Company may exercise its option under this Section 3.02(212.5(b) notwithstanding the prior exercise of its option under clause (c) of this Section 3.02(3) 12.5 with respect to such Subordinated NotesSecurities.
(3c) Upon the Company’s exercise of the above option applicable to this Section 3.02(3)12.5(c) with respect to any Securities of or within a series, the Company will shall be released from its obligations under any covenant applicable to such Securities specified pursuant to Section 9.04 (except 2.1(t), with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 such outstanding Securities on and after the date the conditions set forth in clause (d) of this Section 3.02(4) 12.5 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities shall thereafter be deemed to be not “Outstandingoutstanding” for the purposes of any direction, waiver, consent or declaration or Act act of Holders holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstandingoutstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated Notesoutstanding Securities, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 6.1(c) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(2clause (b) or (c) of this Section 3.02(3) 12.5 to any Outstanding Subordinated Notesoutstanding Securities of or within a series:
(ai) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 7.9 who will shall agree to comply with the provisions of this Section 3.02 12.5 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holdersholders of such Securities, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants accounting firm expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and, to the extent that such Outstanding Subordinated Notes on Securities provide for the payment of Additional Interest thereon and the amount of any such Additional Interest is at the time of deposit reasonably determinable by the Company (in the exercise by the Company of its sole and absolute discretion), any Additional Interest with respect to, such outstanding Securities to and including the Stated Maturity of such principal or installment of principal or interest or the Redemption Date established pursuant to clause (iv) below, if any, and (z) any mandatory sinking fund payments or analogous payments applicable Redemption Date, as to such outstanding Securities on the case may beday on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities.
(bii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(iii) Solely in the case of an election under clause (b) of this Section 12.5, no Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iv) If the Securities are to be redeemed prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made.
(v) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 12.5 (as the case may be) have been complied with.
(vi) Notwithstanding any other provisions of this Section 12.5(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 2.1.
Appears in 1 contract
Samples: Junior Subordinated Indenture (Dominion Resources Inc /Va/)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under clauses (ii) and (iii) of Section 9.04 (except with respect to clause (i))9.04, Section 9.05. , Section 9.06, Section 9.07 and Section 9.09 9.08 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. of any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 1 contract
Samples: Indenture (Pathward Financial, Inc.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 2.4, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 8.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 8.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 8.2 (with such modifications thereto as may be specified pursuant to Section 2.4 with respect to any Securities), shall be applicable to such Securities, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(28.2(2) or Section 3.02(38.2(3) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes8.2.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)8.2(2) with respect to any Outstanding Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its their obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4) of this Section 3.02 8.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraphSecurities, and to have satisfied all of its other obligations under such Subordinated Notes Securities, and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 8.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, on such Subordinated Notes Securities when such payments are duedue and any rights of such Holder to exchange such Securities for securities of another issuer, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to the Securities of such Subordinated Notes series under Section 2.07Sections 2.8, Section 2.092.9, Section 9.02 3.2, 3.3 and Section 9.038.3, and with respect to any rights to exchange such Securities for securities of another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.038.2. The Company may exercise its option under this Section 3.02(28.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 8.2 with respect to such Subordinated NotesSecurities.
(3) Upon the Company’s exercise of the above option applicable to have this Section 3.02(3)8.2(3) apply with respect to any Outstanding Securities of or within a series, the Company will and the Guarantor shall be released from its their respective obligations under Section 9.04 (except 3.6, and, to the extent specified pursuant to Section 2.4(18), any other covenant applicable to such Securities, with respect to clause (i))such Outstanding Securities, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 8.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 5.1(4) or 5.1(9) or otherwise with respect to such series of Securities but, except as specified above, the remainder of this Indenture and with respect to such Subordinated Notes will series of Securities shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 8.2 to any Outstanding Subordinated NotesSecurities of or within a series:
(a) The Company will or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 Article 6 who will shall agree to comply with the provisions of this Section 3.02 8.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in Dollarssuch Currency in which such Securities are then specified as payable at the Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at the Stated Maturity) which through the scheduled payment of principal and interest in respect thereof thereof, in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any), interest, if any, on and Additional Amounts, if any, on, such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, discharge (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities at the Stated Maturity of such principal or installment of principal or interest premium or interest, or on the applicable Redemption DateDate and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the days on which such payments are due and payable in accordance with or pursuant to the terms of this Indenture and such Securities. Provided, as that notwithstanding the case may beforegoing, with respect to any Securities which shall at the time be listed for trading on the New York Stock Exchange, there shall be no deposit of funds in cash and/or in Government Obligations with the Trustee to pay the principal amount, the redemption price or any installment of interest in order to discharge the Company’s obligations in respect of such payment if, at such time, the rules of the New York Stock Exchange prohibit such deposit with the Trustee (or other qualifying trustee).
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary the Guarantor is a party or by which it either the Company or the Guarantor is bound.
(c) No Event of Default or event, which with notice or lapse of time or both would become an Event of Default, with respect to such Securities, shall have occurred and be continuing on the date of such deposit.
(d) In the case of an election under clause (2) or (3), as the case may be, of this Section 8.2, the Company shall have (i) delivered to the Trustee an Opinion of Counsel to the effect that the deposit and related defeasance or covenant defeasance, as the case may be, in and by themselves, would not cause the Holders of Securities of such series to recognize income, gain or loss for U.S. federal income tax purposes; provided, that, any such Opinion of Counsel given in the case of an election under clause (2) shall state that it is based on either (A) a letter ruling received by the Company from the U.S. Internal Revenue Service or a Revenue Ruling published by the U.S. Internal Revenue Service or (B) a change in the applicable U.S. federal income tax law since the date of execution of this Indenture, and (ii) either, (a) delivered to the Trustee an Opinion of Counsel to the effect that the deposit and related defeasance or covenant defeasance, as the case may be, in and by themselves, would not cause the Holders of Securities of such series to recognize income, gain or loss for Canadian federal income tax purposes or cause payments under such series of Securities or the applicable Guarantee to be subject to Canadian withholding tax; or (b) indemnified Holders of Securities of such series for income, gain or loss, for Canadian federal income tax purposes and for Canadian withholding tax purposes, as each is directly attributable to such defeasance or covenant defeasance in and by themselves, without limiting the Company’s obligation to pay Additional Amounts as provided under Article 10 hereof.
(e) If the Securities of such series are to be redeemed prior to their Stated Maturity, notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made.
(f) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 8.2 (as the case may be) have been complied with. The Company shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 8.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 8.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company or the Guarantor from time to time upon Company Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 8.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 8.2.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1) The In addition to discharge of this Indenture pursuant to Section 11.01, if this Section is specified, as contemplated by Section 2.01, to be applicable to Securities of any series, the Company may at its option and elect at any time, elect time either to have effect: (i) a defeasance and discharge of the Securities of any particular series under Section 3.02(211.02(a) below; or (ii) a covenant defeasance of the Securities of any particular series under Section 3.02(311.02(b) be applied to such Outstanding Subordinated Notes below; in each case upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause Section 11.02(b).
(4a) Upon election by the Company to effect a defeasance and discharge of the Securities of any series under this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose11.02(a) and satisfaction of the conditions precedent set forth in Section 11.02(b) with respect to the Securities of such series, Legal Defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by Securities of such Outstanding Subordinated Notes, which will thereafter series and the Company shall be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as all its other obligations relating to such Subordinated Notes are concerned (and Securities under the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same)Indenture, except for Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10 and 11.05 of the following which will Indenture that shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders Securities of such Outstanding Subordinated Notes to receiveseries mature and are paid. Thereafter, solely from the trust fund described in Section 3.02(4)(a) Sections 7.06 and as more fully set forth in 11.05 of this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee Indenture shall survive with respect to the Securities of such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, series.
(iiib) Upon election by the rights, powers, trusts, duties and immunities Company to effect a covenant defeasance with respect to the Securities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option any series under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(311.02(b), the Company will shall be released from its obligations under Section 9.04 (except any covenants made applicable to the Securities of such series which are subject to defeasance under the terms established with respect to clause (i)), such series pursuant to Section 9.05. Section 9.07 and Section 9.09 2.01 hereof on and or after the date the conditions precedent set forth in Section 3.02(411.02(b) are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, with and will shall have no liability in respect of. of any term, condition or limitation set forth in any covenant applicable to such series which is subject to defeasance under the terms established with respect to such series pursuant to Section or any 2.01 hereof pertaining to such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected therebyseries.
(4c) The following will shall be conditions precedent to the conditions to application of Sections 11.02(a) and 11.02(b):
(1) with respect to Section 3.02(211.02(a) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The 11.02(b), the Company will irrevocably shall have deposited or caused cause to be deposited irrevocably with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) Trustee, as trust funds in trust for the purpose of making the following payments, payments and specifically pledged as security for, for and dedicated solely to, to the benefit of the Holdersholders of the Securities to be defeased, cash in U.S. dollars (ior such other money or currencies as shall then be legal tender in the United States) an amount in Dollarsand/or Governmental Obligations, (ii) Government Obligations that which through the scheduled payment of interest and principal and interest in respect thereof thereof, in accordance with their terms terms, will providebe provided (and without reinvestment and assuming no tax liability will be imposed on the Trustee), not later than one day before the due date of any payment of principal of and interestmoney, if any, on such Subordinated Notes, money or (iii) a combination thereof, an amount in any case, in an amountcash, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee discharge principal (or other qualifying trustee) to pay and discharge, the principal of and interestincluding premium, if any, on, ) and interest on such Outstanding Subordinated Notes Securities on the Stated Maturity of such principal or installment of principal or interest on the dates on which such installments of principal and interest are due, in accordance with the terms of this Indenture or the applicable Redemption Dateterms otherwise established pursuant to Section 2.01 with respect to such Securities, as and such Securities;
(2) in the case of defeasance under Section 11.02(a), the Company shall have delivered to the Trustee an Opinion of Counsel based on the fact that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling (which ruling may be., but need not be, issued with respect to the Company) or (B) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and such opinion shall confirm that, the holders of the Outstanding Securities of such series will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United States federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
(b3) Such Legal Defeasance in the case of covenant defeasance under Section 11.02(b), the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, and such opinion shall confirm that, the holders of the Outstanding Securities of such series will not recognize income, gain or Covenant Defeasance loss for United States federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to United States federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred;
(4) such deposit and defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound;
(5) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance and discharge under (a) or the covenant defeasance under (b) (as the case may be) have been complied with;
(6) such defeasance and discharge or covenant defeasance will not cause the Trustee to have a conflicting interest as defined in Section 7.08 or for purposes of the Trust Indenture Act with respect to any securities of the Company or result in the trust arising from such deposit to constitute an investment company under the Investment Company Act of 1940, as amended. or such trust shall be qualified under such act or exempt from regulation thereunder; and
(7) the Company has paid or caused to be paid all other sums payable with respect to the Securities to be defeased.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding 3.02(2)notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under clauses (ii) and (iii) of Section 9.04 (except with respect to clause (i))and under Section 9.05, Section 9.05. Section 9.07 9.06 and Section 9.09 9.08 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Subordinated Notes will have occurred and be continuing on the date of such deposit, and, solely in the case of Legal Defeasance under Section 3.02(2), no Event of Default, or event which with notice or lapse of time or both would become an Event of Default, under Section 4.01 will have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit (it being understood that this condition to Legal Defeasance under Section 3.02(2) will not be deemed satisfied until the expiration of such period).
(d) In the case of Legal Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel will confirm that, the Holders of such Outstanding 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.
(e) In the case of Covenant Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding 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.
(f) The Company will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the Legal Defeasance or Covenant Defeasance, as the case may be, under this Indenture have been satisfied.
(g) If the moneys or Government Obligations or combination thereof, as the case may be, deposited under Section 3.02(4)(a) above are sufficient to pay the principal of, and interest, if any, on, such Subordinated Notes provided such Subordinated Notes are redeemed on a particular Redemption Date, the Company will have given the Trustee irrevocable instructions to redeem such Subordinated Notes on such date and to provide notice of such redemption to Holders as provided in or under this Indenture.
(h) The Trustee will have received such other documents, assurances and Opinions of Counsel as the Trustee will have reasonably required in its discretion.
(5) Subject to the provisions of the last paragraph of Section 9.03, all money and Government Obligations deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 3.02(5), the “Trustee”) in accordance with Section 3.02(4)(a) in respect of any Outstanding Subordinated Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Subordinated Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any Subsidiary or Affiliate of the Company acting as Paying Agent) as the Trustee may determine in its discretion, to the Holders of all sums due and to become due thereon in respect of principal and interest but such money and Government Obligations need not be segregated from other funds, except to the extent required by law. The Company will pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited in accordance with this Section 3.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Subordinated Notes.
Appears in 1 contract
Samples: Indenture (HarborOne Bancorp, Inc.)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 12.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 12.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 12.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and the Company and the Guarantor may at its their option and by their respective Board Resolutions, at any time, with respect to such Securities, elect to have Section 3.02(212.2(b) or Section 3.02(312.2(c) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes12.2.
(2b) Upon the Company’s and the Guarantor’s exercise of the above option applicable to this Section 3.02(2)12.2(b) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4d) of this Section 3.02 12.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will and the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notes, Securities which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (c) of this Section 3.02(5) 12.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receiveSecurities, solely from the trust fund described in clause (d) of this Section 3.02(4)(a) 12.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such Holder to convert such Securities into Common Stock of the Company or the Guarantor or exchange such Securities for other securities; (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.6, 3.9, 4.2, 4.3 and 12.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.074.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 12.2(d)(i) below), Section 2.09, Section 9.02 and Section 9.03, with respect to any rights to convert such Securities into Common Stock of the Company or the Guarantor or exchange such Securities for other securities; (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 7.6 herein; and (iv) this Section 3.02 and Section 3.0312.2. The Company and the Guarantor may exercise its option under this Section 3.02(212.2(b) notwithstanding the prior exercise of its option under clause (c) of this Section 3.02(3) 12.2 with respect to such Subordinated NotesSecurities.
(3c) Upon the Company’s and the Guarantor’s exercise of the above option applicable to have this Section 3.02(3)12.2(c) apply with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its their obligations under Section 9.04 (except in respect of any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 such Outstanding Securities on and after the date the conditions set forth in clause (d) of this Section 3.02(4) 12.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenantcovenant or obligation, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 6.1 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(2clause (b) or (c) of this Section 3.02(3) 12.2 to any Outstanding Subordinated NotesSecurities of or within a series:
(ai) The Company will and the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 7.8 who will shall agree to comply with the provisions of this Section 3.02 12.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on with respect to such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to such Securities (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(bii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 6.1(f) or (g) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary the Guarantor is a party or by which it is bound.
(iv) In the case of an election under clause (b) of this Section 12.2 for which the Place of Payment is within the United States, the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(v) In the case of an election under clause (c) of this Section 12.2 with respect to Requested Securities and for which the Place of Payment is within the United States, the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such 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.
(vi) With respect to defeasance only, the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (d) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company or the Guarantor under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company or the Guarantor issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an “insider”).
(vii) With respect to defeasance only, the Company and the Guarantor shall have delivered to the Trustee an Officer’s Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company or the Guarantor.
(viii) The Company and the Guarantor shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 12.2 (as the case may be) have been complied with.
(ix) Notwithstanding any other provisions of this Section 12.2(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 3.1.
(e) Unless otherwise specified in or pursuant to this Indenture, if, after a deposit referred to in Section 12.2(d)(i) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 12.2(d)(i) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 12.2(d)(i) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company and the Guarantor shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 12.2(d) and Section 12.3, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 12.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 12.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request or to the Guarantor from time to time upon Guarantor Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) of this Section 12.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 12.2.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. With respect to the Notes only (and not any other series of Securities issued pursuant to the Base Indenture), Section 12.03 of the Base Indenture is replaced in its entirety with the following:
(1) The Company Co-Obligors may at its their option and by Board Resolution, at any time, with respect to the Notes, elect to have Section 3.02(23.2(2) or Section 3.02(33.2(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes3.2.
(2) Upon the Company’s Co-Obligors’ exercise of the above option applicable to provided for in this Section 3.02(2)3.2(2) with respect to the Notes, the Company will Co-Obligors shall be deemed to have been discharged from its their obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 3.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will Co-Obligors shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notes, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 3.02(5) 3.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the CompanyCo-Obligors, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receiveNotes, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 3.2 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, on such Subordinated Notes when such payments are due, and any rights of such Holder to exchange such Notes into other securities, (ii) the obligations of the Company Co-Obligors and the Trustee with respect to such Subordinated Notes under Section 2.07Sections 3.01, Section 2.093.06, Section 9.02 3.07, 6.01 and Section 9.036.03 of the Base Indenture, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and under the Base Indenture and (iv) this Section 3.02 and Section 3.033.2. The Company Co-Obligors may exercise its their option under this Section 3.02(23.2(2) notwithstanding the prior exercise of its their option under clause (3) of this Section 3.02(3) 3.2 with respect to such Subordinated Notes.
(3) Upon the Company’s Co-Obligors’ exercise of the above option applicable to provided for in this Section 3.02(3)3.2(3) with respect to the Notes, the Company will Co-Obligors shall be released from its their obligations under Sections 5.1 to 5.3, inclusive, and Section 9.04 (except 6.05 to 6.08 of the Base Indenture, inclusive, with respect to clause (i))such Outstanding Notes, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 3.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated Notes, the Company Co-Obligors may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 4.1(3) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 3.2 to any Outstanding Subordinated NotesNotes in respect thereof:
(a) The Company will A Co-Obligor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 11.04 of the Base Indenture who will shall agree to comply with the provisions of this Section 3.02 3.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Notes, (i1) an amount in Dollars, or (ii2) Government Obligations that Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated Notes, money in an amount, or (iii3) a combination thereofof (1) and (2), in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, and in the case of (2) and (3), in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may beinterest.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is Co-Obligors are a party or by which it any of them is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Notes shall have occurred and be continuing on the date of such deposit (other than a default resulting from the borrowing of funds and the grant of the related liens to be applied to such deposit).
(d) In the case of an election under clause (2) of this Section 3.2, the Co-Obligors shall have delivered to the Trustee an Opinion of Counsel stating that (i) such Co-Obligor has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of such Outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 3.2, the applicable Co-Obligor shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of 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.
(f) The Co-Obligors shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 3.2 (as the case may be) and clause (4) of this Section 3.2 have been complied with.
(5) Subject to the provisions of the last paragraph of Section 12.06 of the Base Indenture, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 3.2(5), the “Trustee”) pursuant to clause (4) of
Appears in 1 contract
Samples: Second Supplemental Indenture (Sl Green Operating Partnership, L.P.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may may, at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraphSection 3.02(2), and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, on such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 9.02, and Section 9.03, (iii) the rights, powers, trusts, duties duties, and immunities of the Trustee hereunder hereunder, and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i))) Section 9.07, Section 9.05. Section 9.07 and Section 9.09 9.08 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration declaration, or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that that, with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition condition, or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will shall have irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one calendar day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money money, or (iii) a combination thereof, in any case, in an amount, amount sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, Trustee to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, on such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Subordinated Notes will have occurred and be continuing on the date of such deposit, and, solely in the case of Legal Defeasance under Section 3.02(2), no Event of Default, or event which with notice or lapse of time or both would become an Event of Default, under Section 4.01 will have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit (it being understood that this condition to Legal Defeasance under Section 3.02(2) will not be deemed satisfied until the expiration of such period).
(d) In the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel will confirm that, the Holders of such Outstanding 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.
(e) In the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding 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.
(f) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the Legal Defeasance or Covenant Defeasance, as the case may be, under this Indenture have been satisfied.
(g) If the moneys or Government Obligations or combination thereof, as the case may be, deposited under Section 3.02(4)(a) above are sufficient to pay the principal of, and interest, if any, on, such Subordinated Notes provided such Subordinated Notes are redeemed on a particular Redemption Date, the Company shall have given the Trustee irrevocable instructions to redeem such Subordinated Notes on such date and to provide notice of such redemption to Holders as provided in or under this Indenture.
(h) The Trustee shall have received such other documents, assurances, and Opinions of Counsel as the Trustee will have reasonably required in its discretion.
(5) Subject to the provisions of the last paragraph of Section 9.03, all money and Government Obligations deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 3.02(5), the “Trustee”) in accordance with Section 3.02(4)(a) in respect of any Outstanding Subordinated Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Subordinated Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any Subsidiary or Affiliate of the Company acting as Paying Agent) as the Trustee may reasonably determine, to the Holders of all sums due and to become due thereon in respect of principal and interest, but such money and Government Obligations need not be segregated from other funds, except to the extent required by law.
Appears in 1 contract
Samples: Indenture (Reliant Bancorp, Inc.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company Issuer may at its option and by Board Resolution, at any time, elect to have Section 3.02(2402(2) or Section 3.02(3402(3) be applied to the Outstanding Securities of any particular series specified in such Outstanding Subordinated Notes Board Resolution upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes402.
(2) Upon the CompanyIssuer’s exercise of the above option applicable to this Section 3.02(2402(2), the Company will Issuer shall be deemed to have been discharged from its obligations with respect to the Outstanding Securities of such Outstanding Subordinated Notes series on the date the conditions set forth in clause (4) of this Section 3.02 402(2) are satisfied (hereinafter, “Legal Defeasancelegal defeasance”). For this purpose, Legal Defeasance such legal defeasance means that the Company will Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such Outstanding Subordinated Notesseries, which will shall thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) Sections 403 and 404 and the other Sections provisions of this Indenture referred to below in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under the Securities of such Subordinated Notes series and this Indenture insofar as the Securities of such Subordinated Notes series are concerned (and the Trustee, at the expense of the CompanyIssuer, will shall execute proper instruments acknowledging the same), except for the following provisions hereof, which will shall survive until otherwise terminated or discharged hereundersuch legal defeasance and remain in full force and effect with respect to the Securities of such series: (i) the rights of Holders of the Securities of such Outstanding Subordinated Notes series to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03402(4)(i), payments in respect of the principal of (and interestpremium, if any, on, ) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on the Securities of such Subordinated Notes series when such payments are due, (ii) the obligations provisions of Sections 304, 305, 306, 606, 608(5), 1002, 1003 and 1012, and this Article 4 (other than Section 401), and if the Company Securities of such series will be paid on a Redemption Date, Article 11, and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties obligations and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03hereunder. The Company Issuer may exercise its option under this Section 3.02(2402(2) notwithstanding the prior exercise of its option under Section 3.02(3402(3). Upon the effectiveness of any legal defeasance (but not covenant defeasance) with respect to the Securities of a particular series, the Guarantor will be released from its Guarantees of the Securities of such Subordinated Notesseries.
(3) Upon the CompanyIssuer’s exercise of the above option applicable to this Section 3.02(3)402(3) with respect to the Securities of any particular series, the Company will Issuer and the Guarantor shall be released from its their respective obligations under Section 9.04 (except 1004 with respect to clause such Securities to keep in full force and effect its rights (i))charter and statutory) and franchises (but, Section 9.05. Section 9.07 for the avoidance of doubt, shall not be released from their respective obligations with respect to such Securities to do or cause to be done all things necessary to preserve and Section 9.09 keep in full force and effect their respective existences (except as permitted under Article 8)) and Sections 1005 through 1007, inclusive on and after the date the conditions set forth in Section 3.02(4402(4) are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and the Securities of such Subordinated Notes will series shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that with respect to such the Outstanding Subordinated NotesSecurities of a particular series, the Company Issuer and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantSection, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 501(4) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture Indenture, the Securities of such series and such Subordinated Notes will the related Guarantees shall be unaffected thereby.
(4) The following will shall be the conditions to application the effectiveness of legal defeasance pursuant to Section 3.02(2) or 402(2), and covenant defeasance pursuant to Section 3.02(3) 402(3), to any Outstanding Subordinated NotesSecurities of or within a series:
(ai) The Company will Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (iA) an amount in DollarsU.S. dollars, or (iiB) Government Obligations that which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and interestpremium, if any, ) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Subordinated NotesSecurities, money in an amount, or (iiiC) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal of (and interestpremium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and interestpremium, if any, on, ) and Interest on such Outstanding Subordinated Notes Securities on the Stated Maturity of such principal or installment of principal or interest or of (and premium, if any) and Interest and the Redemption Price upon redemption pursuant to Article 11 on the applicable Redemption Date, as the case may be, in accordance with the terms of this Indenture and such Securities.
(bii) In the case of legal defeasance pursuant to Section 402(2) with respect to Securities of a particular series, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (x) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of 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; or, in the case of covenant defeasance pursuant to Section 402(3), the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the Holders of 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.
(iii) Such Legal Defeasance legal defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Issuer or any Subsidiary the Guarantor is a party or by which it either of them is bound.
(iv) No Event of Default or event which with notice or lapse of time or both would become an Event of Default shall have occurred and be continuing on the date of such deposit, and no Event of Default or event which with notice or lapse of time or both would become an Event of Default under Section 501(6) or 501(7) shall have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit.
(v) The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the legal defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.
(vi) If the monies or Government Obligations or combination thereof, as the case may be, deposited under Section 402(4)(i) above are sufficient to pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Securities provided such Securities are redeemed on a particular Redemption Date, the Issuer shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
(vii) Such legal defeasance or covenant defeasance will not cause the Trustee to have a conflicting interest for the purposes of the Trust Indenture Act with respect any of the Issuer’s or the Guarantor’s securities.
(viii) Such legal defeasance or covenant defeasance will not cause any securities listed on any registered national securities exchange under the Exchange Act to be delisted.
(ix) Such legal defeasance or covenant defeasance will be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Issuer or the Guarantor in connection therewith.
(5) The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Securities.
(6) Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon an Issuer Request any money or Government Obligations (or any proceeds therefrom) held by it as provided in Section 402(2)(i) which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a legal defeasance or covenant defeasance, as applicable, in accordance with this Section 402.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company Issuer may at its option and at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with all of the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only obligations of the Issuer discharged with respect to all, the outstanding Notes and not less than all, this Indenture and all obligations of the Outstanding Subordinated Notes.
(2) Upon Issuer and the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been Subsidiary Guarantors discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of their Note Guarantees and this Section 3.02 are satisfied Indenture (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses except for:
(i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (ia) the rights of Holders of such Outstanding Subordinated outstanding Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, receive payments in respect of the principal of and interestof, if any, or interest or premium on, such Subordinated Notes when such payments are due, due from the trust referred to below;
(iib) the Issuer’s obligations of the Company and the Trustee with respect to such Subordinated the Notes under Section 2.07concerning issuing temporary Notes, Section 2.09registration of Notes, Section 9.02 mutilated, destroyed, lost or stolen Notes and Section 9.03, the maintenance of an office or agency for payment and money for security payments held in trust;
(iiic) the rights, powers, trusts, duties and immunities of the Trustee hereunder Trustee, the Issuer’s and the Subsidiary Guarantors’ obligations in connection therewith; and
(ivd) the Legal Defeasance and Covenant Defeasance provisions of this Section 3.02 and Section 3.036.4. The Company may exercise In addition, the Issuer may, at its option under this Section 3.02(2) notwithstanding and at any time, elect to have the prior exercise obligations of its option under Section 3.02(3) the Issuer and the Subsidiary Guarantors released with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3)Sections 4.1, the Company will be released from its obligations under Section 9.04 (except with respect to clause (i))4.2, Section 9.05. Section 9.07 4.3 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied 4.4 (“Covenant Defeasance”) and thereafter any omission to comply with such Sections shall not constitute a Default or Event of Default with respect to the Notes. In the event Covenant Defeasance occurs, the events described under clauses (iii), (iv) and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes (v) of any direction, waiver, consent or declaration or Act Section 5.1 shall no longer constitute an Event of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that Default with respect to such Outstanding Subordinated Notes, the Company may omit . In order to comply with, and will have no liability in respect of. any term, condition exercise either Legal Defeasance or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated NotesCovenant Defeasance:
(ai) The Company will the Issuer must irrevocably have deposited or caused to be deposited deposit with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount cash in Dollars, (ii) non-callable Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provideSecurities, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereofof cash in Dollars and non-callable Government Securities, in any case, in an amount, amounts as shall be sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants expressed in a written certification thereof delivered to the Trusteeaccountants, to pay the principal of, or interest and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and dischargepremium on, the principal of and interest, if any, on, such Outstanding Subordinated outstanding Notes on the Stated Maturity of such principal stated date for payment thereof or installment of principal or interest or on the applicable Redemption Dateredemption date, as the case may be., and the Issuer must specify whether Notes are being defeased to such stated date for payment or to a particular redemption date;
(bii) Such in the case of Legal Defeasance, the Issuer shall deliver to the Trustee an Opinion of Counsel confirming that (A) the Issuer 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 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;
(iii) in the case of Covenant Defeasance, the Issuer shall deliver to the Trustee an Opinion of Counsel 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;
(iv) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Issuer or any Subsidiary Guarantor is a party or by which it the Issuer or any Subsidiary Guarantor is bound;
(v) 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 Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound;
(vi) the Issuer must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or others; and
(vii) the Issuer must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with, such opinion to be subject to customary assumptions and exceptions.
Appears in 1 contract
Samples: Indenture (Cementos Pacasmayo Saa)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under Section 4.2(3) shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 4.3, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Sections 10.5 and 10.6, and, to the extent specified pursuant to Section 9.04 (except 3.1(19), any other covenant applicable to such Securities, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section section or such other covenant or by reason of reference in any such Section section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the TrusteeTrustee (on which the Trustee shall be fully protected in relying upon), to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 1 contract
Samples: Indenture (Convergys Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 12.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 12.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 12.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and the Company may at its option and by Board Resolution, at any time, with respect to such Securities, elect to have Section 3.02(212.2(b) or Section 3.02(312.2(c) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes12.2.
(2b) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)12.2(b) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4d) of this Section 3.02 12.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notes, Securities which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (c) of this Section 3.02(5) 12.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receiveSecurities, solely from the trust fund described in clause (d) of this Section 3.02(4)(a) 12.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such Holder to convert such Securities into Common Stock of the Company or exchange such Securities for other securities; (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.6, 3.7, 4.2, 4.3 and 12.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.074.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 12.2(d)(i) below), Section 2.09, Section 9.02 and Section 9.03, with respect to any rights to convert such Securities into Common Stock of the Company or exchange such Securities for other securities; (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 7.6 herein; and (iv) this Section 3.02 and Section 3.0312.2. The Company may exercise its option under this Section 3.02(212.2(b) notwithstanding the prior exercise of its option under clause (c) of this Section 3.02(3) 12.2 with respect to such Subordinated NotesSecurities.
(3c) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)12.2(c) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Section 9.04 (except in respect of any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 such Outstanding Securities on and after the date the conditions set forth in clause (d) of this Section 3.02(4) 12.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenantcovenant or obligation, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 6.1 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(2clause (b) or (c) of this Section 3.02(3) 12.2 to any Outstanding Subordinated NotesSecurities of or within a series:
(ai) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 7.8 who will shall agree to comply with the provisions of this Section 3.02 12.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on with respect to such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to such Securities (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(bii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 6.1(f) or (g) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary is a party or by which it is bound.
(iv) In the case of an election under clause (b) of this Section 12.2 for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(v) In the case of an election under clause (c) of this Section 12.2 with respect to Requested Securities and for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such 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.
(vi) With respect to defeasance only, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (d) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an "insider").
(vii) With respect to defeasance only, the Company shall have delivered to the Trustee an Officer's Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company.
(viii) The Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 12.2 (as the case may be) have been complied with.
(ix) Notwithstanding any other provisions of this Section 12.2(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(e) Unless otherwise specified in or pursuant to this Indenture, if, after a deposit referred to in Section 12.2(d)(i) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 12.2(d)(i) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 12.2(d)(i) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 12.2(d) and Section 12.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 12.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 12.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) of this Section 12.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 12.2.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 12.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 12.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 12.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and the Company may at its option and by Board Resolution, at any time, with respect to such Securities, elect to have Section 3.02(212.2(b) or Section 3.02(312.2(c) be applied to such Outstanding Subordinated Notes Securities upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes12.2.
(2b) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)12.2(b) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities on the date the conditions set forth in clause (4d) of this Section 3.02 12.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notes, Securities which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (c) of this Section 3.02(5) 12.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as such Subordinated Notes Securities are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receiveSecurities, solely from the trust fund described in clause (d) of this Section 3.02(4)(a) 12.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities when such payments are due, and any rights of such Holder to convert such Securities into Common Shares of the Company or exchange such Securities for other securities; (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 3.6, 3.9, 4.2, 4.3 and 12.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.074.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 12.2(d)(i) below), Section 2.09, Section 9.02 and Section 9.03, with respect to any rights to convert such Securities into Common Shares of the Company or exchange such Securities for other securities; (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 7.6 herein; and (iv) this Section 3.02 and Section 3.0312.2. The Company may exercise its option under this Section 3.02(212.2(b) notwithstanding the prior exercise of its option under clause (c) of this Section 3.02(3) 12.2 with respect to such Subordinated NotesSecurities.
(3c) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)12.2(c) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Section 9.04 (except in respect of any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 such Outstanding Securities on and after the date the conditions set forth in clause (d) of this Section 3.02(4) 12.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenantcovenant or obligation, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 6.1 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(2clause (b) or (c) of this Section 3.02(3) 12.2 to any Outstanding Subordinated NotesSecurities of or within a series:
(ai) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 7.8 who will shall agree to comply with the provisions of this Section 3.02 12.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on with respect to such Subordinated NotesSecurities, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to such Securities (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(bii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 6.1(f) or (g) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary is a party or by which it is bound.
(iv) In the case of an election under clause (b) of this Section 12.2 for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(v) In the case of an election under clause (c) of this Section 12.2 with respect to Requested Securities and for which the Place of Payment is within the United States, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such 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.
(vi) With respect to defeasance only, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (d) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an "insider").
(vii) With respect to defeasance only, the Company shall have delivered to the Trustee an Officer's Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company.
(viii) The Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 12.2 (as the case may be) have been complied with.
(ix) Notwithstanding any other provisions of this Section 12.2(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(e) Unless otherwise specified in or pursuant to this Indenture, if, after a deposit referred to in Section 12.2(d)(i) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 12.2(d)(i) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 12.2(d)(i) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 12.2(d) and Section 12.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 12.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities. Anything in this Section 12.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) of this Section 12.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 12.2.
Appears in 1 contract
Samples: Subordinated Indenture (Aspen Insurance Holdings LTD)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.024.2. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will or the ---------- Guarantor shall -40- be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the ----------- other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto, and the Guarantee in respect thereof, are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantor, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into Common Stock of the Company or exchange such Securities for securities of the Guarantor or another issuer, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into Common Stock of the Company or exchange such Securities for securities of the Guarantor or another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 6.6 herein and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under Section 9.04 (except with respect to clause (i)), Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. With respect to the Notes only (and not any other series of Securities issued pursuant to the Base Indenture), Section 12.03 of the Base Indenture is replaced in its entirety with the following:
(1) The Company Co-Obligors may at its their option and by Board Resolution, at any time, with respect to the Notes, elect to have Section 3.02(23.2(2) or Section 3.02(33.2(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes3.2.
(2) Upon the Company’s Co-Obligors’ exercise of the above option applicable to provided for in this Section 3.02(2)3.2(2) with respect to the Notes, the Company will Co-Obligors shall be deemed to have been discharged from its their obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 3.2 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will Co-Obligors shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated Notes, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 3.02(5) 3.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the CompanyCo-Obligors, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receiveNotes, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 3.2 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, on such Subordinated Notes when such payments are due, and any rights of such Holder to exchange such Notes into other securities, (ii) the obligations of the Company Co-Obligors and the Trustee with respect to such Subordinated Notes under Section 2.07Sections 3.01, Section 2.093.06, Section 9.02 3.07, 6.01 and Section 9.036.03 of the Base Indenture, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and under the Base Indenture and (iv) this Section 3.02 and Section 3.033.2. The Company Co-Obligors may exercise its their option under this Section 3.02(23.2(2) notwithstanding the prior exercise of its their option under clause (3) of this Section 3.02(3) 3.2 with respect to such Subordinated Notes.
(3) Upon the Company’s Co-Obligors’ exercise of the above option applicable to provided for in this Section 3.02(3)3.2(3) with respect to the Notes, the Company will Co-Obligors shall be released from its their obligations under Sections 5.1 to 5.3, inclusive, and Section 9.04 (except 6.05 to 6.08 of the Base Indenture, inclusive, with respect to clause (i))such Outstanding Notes, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 3.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated Notes, the Company Co-Obligors may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 4.1(3) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 3.2 to any Outstanding Subordinated NotesNotes in respect thereof:
(a) The Company will A Co-Obligor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 11.04 of the Base Indenture who will shall agree to comply with the provisions of this Section 3.02 3.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Notes, (i1) an amount in Dollars, or (ii2) Government Obligations that Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated Notes, money in an amount, or (iii3) a combination thereofof (1) and (2), in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, and in the case of (2) and (3), in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may beinterest.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is Co-Obligors are a party or by which it any of them is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Notes shall have occurred and be continuing on the date of such deposit (other than a default resulting from the borrowing of funds and the grant of the related liens to be applied to such deposit).
(d) In the case of an election under clause (2) of this Section 3.2, the Co-Obligors shall have delivered to the Trustee an Opinion of Counsel stating that (i) such Co-Obligor has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of such Outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 3.2, the applicable Co-Obligor shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of 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.
(f) The Co-Obligors shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 3.2 (as the case may be) and clause (4) of this Section 3.2 have been complied with.
(5) Subject to the provisions of the last paragraph of Section 12.06 of the Base Indenture, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 3.2(5), the “Trustee”) pursuant to clause (4) of Section 3.2 in respect of any Outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including any Co-Obligor acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to the extent required by law. The Co-Obligors shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 3.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Notes. Anything in this Section 3.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Co-Obligors from time to time upon Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 3.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 3.2.
Appears in 1 contract
Samples: First Supplemental Indenture (SL Green Operating Partnership, L.P.)
DEFEASANCE AND COVENANT DEFEASANCE. (1a) The Unless pursuant to Section 3.01, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 4.02 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 4.02 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.02 (with such modifications thereto as may be specified pursuant to Section 3.01 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.02(b) or Section 3.02(34.02(c) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.02.
(2b) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)4.02(b) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4d) of this Section 3.02 4.02 are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company will or the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “Outstanding” only for the purposes of clause (e) of this Section 3.02(5) 4.02 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto, and the Guarantee in respect thereof, are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantor, will shall execute proper instruments provided to it acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (d) of this Section 3.02(4)(a) 4.02 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into Common Stock of the Company or exchange such Securities for securities of the Guarantor or another issuer, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.05, 3.06, 10.02 and 10.03 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by the terms of such Securities (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 2.074.02(d)(i) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into Common Stock of the Company or exchange such Securities for securities of the Guarantor or another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 6.06 herein and (iv) this Section 3.02 and Section 3.034.02. The Company may exercise its option under this Section 3.02(24.02(b) notwithstanding the prior exercise of its option under clause (c) of this Section 3.02(3) 4.02 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3c) Upon the Company’s exercise of the above option applicable to have this Section 3.02(3)4.02(c) apply with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its their obligations under any covenant applicable to such Securities specified pursuant to Section 9.04 (except 3.01(s), including any obligation to redeem or repurchase such securities at the option of the Holder thereof, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 the Guarantee in respect thereof, on and after the date the conditions set forth in clause (d) of this Section 3.02(4) 4.02 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant or obligation to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 5.01 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto and the Guarantee in respect thereof shall be unaffected thereby.
(4d) The following will shall be the conditions to application of Section 3.02(2clause (b) or (c) of this Section 3.02(3) 4.02 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto and the Guarantee in respect thereof:
(ai) The Company will or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.07 who will shall agree to comply with the provisions of this Section 3.02 4.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (iA) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (iiB) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of with respect to such Securities and interest, if any, on such Subordinated Notesany Coupons appertaining thereto, money in an amount, or (iiiC) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to such Securities and Coupons appertaining thereto (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(bii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 5.01(f) or 5.01(g) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iii) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary is a party or by which it is bound.
(iv) In the case of an election under clause (b) of this Section 4.02 with respect to Registered Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company or the Guarantor has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (B) since the date of execution of this Indenture, there has been a change in the applicable United States Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for United States Federal income tax purposes as a result of such defeasance and will be subject to United States Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.
(v) In the case of an election under clause (c) of this Section 4.02 with respect to Registered Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for United States Federal income tax purposes as a result of such covenant defeasance and will be subject to United States Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(vi) With respect to defeasance only, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.01) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (d) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company or the Guarantor under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company or the Guarantor issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an “insider”).
(vii) With respect to defeasance only, the Company and the Guarantor shall have delivered to the Trustee an Officers’ Certificate and a Guarantor’s Officer’s Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company.
(viii) The Company and the Guarantor shall have delivered to the Trustee an Officers’ Certificate and a Guarantor’s Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 4.02 (as the case may be) have been complied with.
(ix) Notwithstanding any other provisions of this Section 4.02(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 3.01.
(e) Unless otherwise specified in or pursuant to this Indenture or any Series Authorization, if, after a deposit referred to in Section 4.02(d)(i) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.01 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.02(d)(i) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.02(d)(i) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such Currency in effect on the second Local Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. “Local Business Day” means a day on which commercial banks are open for business (including dealings in foreign exchange) in the principal financial center of the Currency of such payment. The Company and the Guarantor (without duplication) shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.02(e) and Section 4.03, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, or the Guarantor upon Guarantor Request, as the case may be, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) of this Section 4.02 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.02.
Appears in 1 contract
Samples: Indenture (Partnerre LTD)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The In addition to ---------------------------------- discharge of this Indenture pursuant to Section 11.01, if this Section is specified, as contemplated by Section 2.01, to be applicable to Securities of any series, the Company may at its option and elect at any time, elect time either to have effect: (i) a defeasance and discharge of the Securities of any particular series under Section 3.02(211.02(a) below; or (ii) a covenant defeasance of the Securities of any particular series under Section 3.02(311.02(b) be applied to such Outstanding Subordinated Notes below; in each case upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause Section 11.02(c).
(4a) Upon election by the Company to effect a defeasance and discharge of the Securities of any series under this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose11.02(a) and satisfaction of the conditions precedent set forth in Section 11.02(c) with respect to the Securities of such series, Legal Defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by Securities of such Outstanding Subordinated Notes, which will thereafter series and the Company shall be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes Securities and this Indenture insofar as all its other obligations relating to such Subordinated Notes are concerned (and Securities under the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same)Indenture, except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights provisions of Holders of such Outstanding Subordinated Notes to receiveSections 2.03, solely from 2.04, 2.05, 2.06, 2.07, 2.09, 2.10, 2.11, 4.02, 4.03, 4.04, 5.01, 7.05, 7.06, 7.10, 10.01, 10.02 and 10.04, that shall survive until the trust fund described Securities have been paid in Section 3.02(4)(afull (thereafter, the Company's obligations in Sections 7.06 only shall survive) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of this Article XI.
(b) Upon election by the Company and the Trustee to effect a covenant defeasance with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities Securities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option any series under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(311.02(b), the Company will shall be released from its obligations under Section 9.04 4.05, Section 4.06 and Section 10.03 of this Indenture (except if applicable to such series) and any covenants made applicable to the Securities of such series which are subject to defeasance under the terms of any indenture supplemental hereto or the terms otherwise established with respect to clause (i)), such series pursuant to Section 9.05. Section 9.07 2.01 hereof and Section 9.09 any such failure to comply with such covenants shall not constitute a default or Event of Default hereunder on and or after the date the conditions precedent set forth in Section 3.02(411.02(c) are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, with and will shall have no liability in respect of. of any term, condition or limitation set forth in any Section 4.05, Section 4.06 and Section 10.03 of this Indenture (if applicable to such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein series) or in any other document and covenant applicable to such omission series which is subject to comply will not constitute a default, but, except as specified above, defeasance under the remainder terms of this Indenture and an indenture supplemental hereto or the terms otherwise established with respect to such Subordinated Notes will be unaffected therebyseries pursuant to Section 2.01 hereof pertaining to such series.
(4c) The following will shall be conditions precedent to the conditions to application of Sections 11.02(a) and 11.02(b): 42
(i) with respect to Section 3.02(211.02(a) or Section 3.02(311.02(b) to any Outstanding Subordinated Notes:
(a) The the Company will irrevocably shall have deposited or caused cause to be deposited irrevocably with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) Trustee, as trust funds in trust for the purpose of making the following payments, payments and specifically pledged as security for, for and dedicated solely to, to the benefit of the Holdersholders of the Securities to be defeased, cash in U.S. dollars (ior such other money or currencies as shall then be legal tender in the United States) an amount in Dollarsand/or Governmental Obligations, (ii) Government Obligations that which through the scheduled payment of interest and principal and interest in respect thereof thereof, in accordance with their terms terms, will providebe provided (and without reinvestment and assuming no tax liability will be imposed on the Trustee), not later than one day before the due date of any payment of principal of and interestmoney, if any, on such Subordinated Notes, money or (iii) a combination thereof, an amount in any case, in an amountcash, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee discharge principal (or other qualifying trustee) to pay and discharge, the principal of and interestincluding premium, if any, on, ) and interest on such Outstanding Subordinated Notes Securities on the Stated Maturity stated maturity of such principal or installment of principal or interest on the dates on which such installments of principal and interest are due, in accordance with the terms of this Indenture, any indenture supplemental thereto entered into pursuant to Section 2.01 with respect to such Securities, and such Securities;
(ii) in the case of defeasance under Section 11.02(a), the Company shall have delivered to the Trustee an Opinion of Counsel based on the fact that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling (which ruling may be, but need not be, issued with respect to the Company) or (B) since the date of this Indenture, there has been a change in the applicable Redemption DateUnited States federal income tax law, in either case to the effect that, and such opinion shall confirm that, the holders of the Outstanding Securities of such series will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United States federal income tax on the same amount and in the same manner and at the same times as would have been the case may be.if such deposit, defeasance and discharge had not occurred;
(biii) Such Legal Defeasance in the case of covenant defeasance under Section 11.02(b), the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, and such opinion shall confirm that, the holders of the Outstanding Securities of such series will not recognize income, gain or Covenant Defeasance loss for United States federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to United States federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred;
(iv) no Event of Default or Default with respect to the Securities to be defeased shall have occurred and be continuing on the date of such deposit, and no such Event of Default under Sections 6.01(a) (4) or (5) or event which with the giving of notice or lapse of time, or both, would become such an Event of Default under Sections 6.01(a) (4) or (5) shall have occurred and be continuing on the 91st day after such date or, if longer, ending on the day following the expiration of the longest preference period applicable to the Company in respect of such deposit (it being understood that this condition of this subsection (iii) shall not be deemed satisfied until the expiration of such period);
(v) such deposit and defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound;
(vi) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance and discharge under Section 11.02(a) or the covenant defeasance under Section 11.02(b) (as the case may be) have been complied with;
(vii) such defeasance and discharge or covenant defeasance will not cause the Trustee to have a conflicting interest as defined in Section 7.08 or for purposes of the Trust Indenture Act with respect to any securities of the Company or result in the trust arising from such deposit to constitute an investment company under the Investment Company Act of 1940 or such trust shall be qualified under such act or exempt from regulation thereunder; and
(viii) the Company has paid or caused to be paid all other sums payable with respect to the Securities to be defeased.
Appears in 1 contract
Samples: Indenture (Steelcase Inc)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless, pursuant to Section 301, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 402 or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 402 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 402 (with such modifications thereto as may be specified pursuant to Section 301 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(2402(2) or 34 Section 3.02(3402(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes402.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)402(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 402 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 402 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the CompanyCompany , will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 402 and as more fully set forth in this Section 3.02 and Section 3.03such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert or exchange such Securities into Common Stock or other securities, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Sections 305, 306, 1002 and 1003, with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.071004, Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert or exchange such Securities into Common Stock or other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 402 and Section 3.03Sections 403 and 404. The Company may exercise its option under this Section 3.02(2402(2) notwithstanding the prior exercise of its option under Section 3.02(3402(3) with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(3)402(3) with respect to any Securities of or within a series, the Company will shall be released from its obligations under Section 9.04 1005 (except other than the Company's obligation to preserve and keep in full force and effect its corporate existence pursuant to Section 1005) and, to the extent specified pursuant to Section 301, any other covenant applicable to such Securities, with respect to clause (i)), Section 9.05. Section 9.07 such Outstanding Securities and Section 9.09 any Coupons appertaining thereto on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 402 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 501(4) or 501(7) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 402 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 607 who will shall agree to comply with the provisions of this Section 3.02 402 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity or, if such defeasance or covenant defeasance is to be effected in compliance with subsection (f) below, on the relevant Redemption Date, as the case may be) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be, and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Major Bank Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit, and, solely in the case of defeasance under Section 402(2), no Event of Default with respect to such Securities and any Coupons appertaining thereto under clause (5) or (6) of Section 501 or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto under clause (5) or (6) of Section 501 shall have occurred and be continuing at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition to defeasance under Section 402(2) shall not be deemed satisfied until the expiration of such period).
(d) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance or covenant defeasance, as the case may be, 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 defeasance or covenant defeasance, as the case may be, had not occurred.
(e) The Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.
(f) If the monies or Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are sufficient to pay the principal of, and premium, if any, and interest, if any, on such Securities provided such Securities are redeemed on a particular Redemption Date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
(g) Notwithstanding any other provisions of this Indenture to the contrary, unless otherwise provided pursuant to Section 301 with respect to the Securities of such series, defeasance and covenant defeasance of the Securities of such series may only be effected during the last year prior to the final Stated Maturity of the principal of such Securities.
(h) Notwithstanding any other provisions of this Section 402(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee --collectively for purposes of this Section 402(5) and Section 403, the "Trustee") pursuant to clause (4) of Section 402 in respect of any Outstanding Securities of any series and any Coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any Coupons appertaining thereto and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any Coupons appertaining thereto of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law. Unless otherwise specified in or pursuant to this Indenture or any Securities, if, after a deposit referred to in Section 402(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 301 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 402(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 402(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 402 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 402.
Appears in 1 contract
Samples: Indenture (Bay View Capital Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may may, at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, “Legal Defeasance Defeasance” means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under clauses (ii) and (iii) of Section 9.04 (except with respect to clause (i))and under Section 9.05, Section 9.05. 9.06 and Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.3.02
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a Series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such Series or (ii) covenant defeasance of the Securities of or within a Series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such Series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution set forth in an Officers’ Certificate at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a Series, the Company will be deemed and each of the Guarantors will, subject to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date satisfaction of the conditions set forth in clause (4) of this Section 3.02 4.2, be deemed to have been discharged from their obligations with respect to all outstanding such Outstanding Securities and any Coupons appertaining thereto (including the Security Guarantees) on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasancedefeasance”). For this purpose, Legal Defeasance such defeasance means that the Company and the Guarantors will be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto (including the Security Guarantees), which will thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i1) through and (iv2) of this paragraphbelow, and to have satisfied all of its their other obligations under such Subordinated Notes Securities, Security Guarantees and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, on written demand of and at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder: (i1) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, receive payments in respect of the principal of (and premium, if any), and interest, if any, on, on such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, due from the trust referred to in Section 4.2(4) hereof; (ii2) the Company’s obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Section 2.07Article 3 and Sections 10.2 and 10.3, Section 2.09, Section 9.02 and Section 9.03, with respect to any rights to convert such Securities into other securities of the Company; (iii3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s and the Guarantors’ obligations in connection therewith; and (iv4) this Section 3.02 and 4.2. Subject to compliance with this Section 3.03. The 4.2, the Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a Series, the Company will and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 4.2(4), be released from its each of their obligations under the covenants contained in Section 9.04 (except 10.4 and, to the extent specified pursuant to Section 3.1, any other covenant applicable to such Securities, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (hereinafter, “Covenant Defeasancecovenant defeasance”), and such Subordinated Notes Securities and any Coupons appertaining thereto will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenantcovenants, but will continue to be deemed “Outstanding” for all other purposes hereunderhereunder (it being understood that such Securities and any Coupons appertaining thereto will not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such the Outstanding Subordinated NotesSecurities, any Coupons appertaining thereto and Security Guarantees, the Company and the Guarantors may omit to comply with, with and will have no liability in respect of. of any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of any reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a defaultDefault or an Event of Default under Section 5.1(4) or 5.1(6), but, except as specified above, the remainder of this Indenture and such Subordinated Notes Securities, Coupons appertaining thereto and Security Guarantees will be unaffected thereby. In addition, upon the Company’s exercise under Section 4.2(1) of the option applicable to this Section 4.2(3), subject to the satisfaction of the conditions set forth in this Section 4.2, Sections 5.1(4), 5.1(6) and, to the extent specified pursuant to Section 3.1, any other Event of Default applicable to Securities of such Series with respect to such Outstanding Securities and any Coupons appertaining thereto, will not constitute Events of Default.
(4) The following will be the conditions In order to application of Section 3.02(2exercise either defeasance or covenant defeasance under either clause (2) or (3) of this Section 3.02(3) 4.2 with respect to any Outstanding Subordinated NotesSecurities of or within a Series and any Coupons appertaining thereto:
(a) The Company will must irrevocably have deposited or caused to be deposited deposit with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds Trustee, in trust trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, cash in (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any each case, in an amount, such amounts as will be sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants expressed in a written certification thereof delivered to the TrusteeIndependent Public Accountants, to pay and discharge, and which will be applied by the Trustee (or other qualifying trusteex) to pay and discharge, the principal of (and premium, if any), and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal of (and premium, if any), and interest, if any, or interest or on the applicable Redemption Dateredemption date, as the case may be, and the Company must specify whether such Securities are being defeased to such Stated Maturity or to a particular redemption date and (y) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the days on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto. provided, that notwithstanding the foregoing, with respect to any Securities which shall at the time be listed for trading on the New York Stock Exchange, there shall be no deposit of funds in cash and/or in Government Obligations with the Trustee to pay the principal amount, the redemption price or any installment of interest in order to discharge the Company’s obligations in respect of such payment if, at such time, the rules of the New York Stock Exchange prohibit such deposit with the Trustee.
(b) In the case of an election under clause (2) of this Section 4.2, the Company must deliver to the Trustee an Opinion of Counsel confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for federal income tax purposes as a result of such 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 defeasance had not occurred.
(c) In the case of an election under clause (3) of this Section 4.2, the Company must deliver to the Trustee an Opinion of Counsel confirming that the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for federal income tax purposes as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(d) No Event of Default or Default which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit).
(e) Such Legal Defeasance defeasance or Covenant Defeasance covenant defeasance will not result in a breach or violation of, or constitute a default Default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary of its subsidiaries is a party or by which it the Company or any of its subsidiaries is bound.
(f) The Company must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of such Outstanding Securities and any Coupons appertaining thereto over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others.
(g) The Company must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the defeasance or the covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(h) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event.
Appears in 1 contract
Samples: Indenture Agreement (RJE Telecom of California, Inc.)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the ---------- Company will or the Guarantor shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the ----------- other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto, and the Guarantee in respect thereof, are concerned (and the Trustee, at the expense of the CompanyCompany and the Guarantor, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into Common Stock of the Company or exchange such Securities for securities of the Guarantor or another issuer, (ii) the obligations of the Company Company, the Guarantor and the Trustee with respect to such Subordinated Notes Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 2.0710.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below), Section 2.09, Section 9.02 and Section 9.03with respect to any rights to convert such Securities into Common Stock of the Company or exchange such Securities for securities of the Guarantor or another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 6.6 herein and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will and the Guarantor shall be released from its their obligations under any covenant applicable to such Securities specified pursuant to Section 9.04 (except 3.1(20), including any obligation to redeem or repurchase such securities at the option of the Holder thereof, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 the Guarantee in respect thereof, on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons ------------------- appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the ----------- purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this ----------- purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company and the Guarantor may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenantcovenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant or obligation to any other provision herein or in any other document and such omission to comply will shall not constitute a default, default or an Event of Default under Section 5.1 but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto and the Guarantee in respect thereof shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto and the Guarantee in respect thereof:
(a) The Company will or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of with respect to such Securities and interest, if any, on such Subordinated Notesany Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to such Securities and Coupons appertaining thereto (based upon applicable law as in effect on the date of such deposit), such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto and, as if applicable, shall have made irrevocable arrangements satisfactory to the case may beTrustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
(b) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 5.1(6) or (7) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(c) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument (other than this Indenture) to which the Company or any Subsidiary is a party or by which it is bound.
(d) In the case of an election under clause (2) of this Section 4.2 with respect to Registered Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or the Guarantor has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2 with respect to Registered Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) With respect to defeasance only, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company or the Guarantor under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company or the Guarantor issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an "insider").
(g) With respect to defeasance only, the Company and the Guarantor shall have delivered to the Trustee an Officers' Certificate and a Guarantor's Officer's Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company.
(h) The Company and the Guarantor shall have delivered to the Trustee an Officers' Certificate and a Guarantor's Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(i) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Series Authorization, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Local Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. "Local Business Day" means a day on which ------------------ commercial banks are open for business (including dealings in foreign exchange) in the principal financial center of the Currency of such payment. The Company and the Guarantor (without duplication) shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the "Trustee") against any tax, fee or other ------- charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, or the Guarantor upon Guarantor Request, as the case may be, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Company may at its option and at any time, elect to have Section 3.02(2) or Section 3.02(3) be applied to such Outstanding Subordinated Notes upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes.
(2) Upon the Company’s exercise of the above option applicable to this Section 3.02(2), the Company will be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes on the date the conditions set forth in clause (4) of this Section 3.02 are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Subordinated Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 3.02(5) and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Subordinated Notes and this Indenture insofar as such Subordinated Notes are concerned (and the Trustee, at the expense of the Company, will execute proper instruments acknowledging the same), except for the following which will survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes to receive, solely from the trust fund described in Section 3.02(4)(a) and as more fully set forth in this Section 3.02 and Section 3.03, payments in respect of the principal of and interest, if any, on, such Subordinated Notes when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes under Section 2.07, Section 2.09, Section 9.02 and Section 9.03, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.03. The Company may exercise its option under this Section 3.02(2) notwithstanding the prior exercise of its option under Section 3.02(3) with respect to such Subordinated Notes.
(3) Upon the Company’s exercise of the above option applicable to this Section 3.02(3), the Company will be released from its obligations under clauses (ii) and (iii) of Section 9.04 (except with respect to clause (i))and under Section 9.05, Section 9.05. 9.06 and Section 9.07 and Section 9.09 on and after the date the conditions set forth in Section 3.02(4) are satisfied (“Covenant Defeasance”), and such Subordinated Notes will thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect to such Outstanding Subordinated Notes, the Company may omit to comply with, and will have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will be unaffected thereby.
(4) The following will be the conditions to application of Section 3.02(2) or Section 3.02(3) to any Outstanding Subordinated Notes:
(a) The Company will irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 who will agree to comply with the provisions of this Section 3.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars, (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and interest, if any, on such Subordinated Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of and interest, if any, on, such Outstanding Subordinated Notes on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be.
(b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Subordinated Notes will have occurred and be continuing on the date of such deposit, and, solely in the case of Legal Defeasance under Section 3.02(2), no Event of Default, or event which with notice or lapse of time or both would become an Event of Default, under Section 4.01 will have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit (it being understood that this condition to Legal Defeasance under Section 3.02(2) will not be deemed satisfied until the expiration of such period).
(d) In the case of Legal Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel will confirm that, the Holders of such Outstanding 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.
(e) In the case of Covenant Defeasance, the Company will have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the Holders of such Outstanding 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.
(f) The Company will have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the Legal Defeasance or Covenant Defeasance, as the case may be, under this Indenture have been satisfied.
(g) If the moneys or Government Obligations or combination thereof, as the case may be, deposited under Section 3.02(4)(a) above are sufficient to pay the principal of, and interest, if any, on, such Subordinated Notes provided such Subordinated Notes are redeemed on a particular Redemption Date, the Company will have given the Trustee irrevocable instructions to redeem such Subordinated Notes on such date and to provide notice of such redemption to Holders as provided in or under this Indenture.
(h) The Trustee will have received such other documents, assurances and Opinions of Counsel as the Trustee will have reasonably required.
(5) Subject to the provisions of the last paragraph of Section 9.03, all money and Government Obligations deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 3.02(5), the “Trustee”) in accordance with Section 3.02(4)(a) in respect of any Outstanding Subordinated Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Subordinated Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any Subsidiary or Affiliate of the Company acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in respect of principal and interest but such money and Government Obligations need not be segregated from other funds, except to the extent required by law. The Company will pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited in accordance with this Section 3.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Subordinated Notes.
Appears in 1 contract
Samples: Indenture (ISABELLA BANK Corp)
DEFEASANCE AND COVENANT DEFEASANCE. (1) The Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option and by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 3.02(24.2(2) or Section 3.02(34.2(3) be applied to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 3.02. Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and not less than all, of the Outstanding Subordinated Notes4.2.
(2) Upon the Company’s 's exercise of the above option applicable to this Section 3.02(2)4.2(2) with respect to any Securities of or within a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto on the date the conditions set forth in clause (4) of this Section 3.02 4.2 are satisfied (“Legal Defeasance”hereinafter, "defeasance"). For this purpose, Legal Defeasance such defeasance means that the Company will shall be deemed to have paid and discharged the entire indebtedness Indebtedness represented by such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, which will shall thereafter be deemed to be “"Outstanding” " only for the purposes of clause (5) of this Section 3.02(5) 4.2 and the other Sections of this Indenture referred to in clauses (i) through and (ivii) of this paragraphbelow, and to have satisfied all of its other obligations under such Subordinated Notes Securities and any Coupons appertaining thereto, and this Indenture insofar as such Subordinated Notes Securities and any Coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, will shall execute proper instruments acknowledging the same), except for the following which will shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Subordinated Notes Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 3.02(4)(a) 4.2 and as more fully set forth in this Section 3.02 and Section 3.03such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, on such Subordinated Notes Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into other securities of the Company or exchange such Securities for securities another issuer, (ii) the obligations of the Company and the Trustee with respect to such Subordinated Notes Securities under Section 2.07Sections 3.5, Section 2.093.6, Section 9.02 10.2 and Section 9.0310.3, and with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 3.02 and Section 3.034.2. The Company may exercise its option under this Section 3.02(24.2(2) notwithstanding the prior exercise of its option under clause (3) of this Section 3.02(3) 4.2 with respect to such Subordinated NotesSecurities and any Coupons appertaining thereto.
(3) Upon the Company’s 's exercise of the above option applicable to have this Section 3.02(3)4.2(3) apply with respect to any Securities of or within a series, the Company will shall be released from its obligations under Sections 10.5 and 10.6, and, to the extent specified pursuant to Section 9.04 (except 3.1(21), any other covenant applicable to such Securities, with respect to clause (i))such Outstanding Securities and any Coupons appertaining thereto, Section 9.05. Section 9.07 and Section 9.09 on and after the date the conditions set forth in clause (4) of this Section 3.02(4) 4.2 are satisfied (“Covenant Defeasance”hereinafter, "covenant defeasance"), and such Subordinated Notes will Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “"Outstanding” " for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but will shall continue to be deemed “"Outstanding” " for all other purposes hereunder. For this purpose, such Covenant Defeasance covenant defeasance means that that, with respect to such Outstanding Subordinated NotesSecurities and any Coupons appertaining thereto, the Company may omit to comply with, and will shall have no liability in respect of. , any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply will shall not constitute a defaultdefault or an Event of Default under Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Subordinated Notes will Securities and Coupons appertaining thereto shall be unaffected thereby.
(4) The following will shall be the conditions to application of Section 3.02(2clause (2) or (3) of this Section 3.02(3) 4.2 to any Outstanding Subordinated NotesSecurities of or within a series and any Coupons appertaining thereto:
(a) The Company will shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.08 6.7 who will shall agree to comply with the provisions of this Section 3.02 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the HoldersHolders of such Securities and any Coupons appertaining thereto, (i1) an amount in DollarsDollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (ii2) Government Obligations that applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Subordinated NotesSecurities and any Coupons appertaining thereto, money in an amount, or (iii3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which will shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, on such Outstanding Subordinated Notes on Securities and any Coupons appertaining thereto at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the applicable Redemption Datedays on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto. Provided, as that notwithstanding the case may beforegoing, with respect to any Securities which shall at the time be listed for trading on the New York Stock Exchange, there shall be no deposit of funds in cash and/or in Government Obligations with the Trustee to pay the principal amount, the redemption price or any installment of interest in order to discharge the Company's obligations in respect of such payment if, at such time, the rules of the New York Stock Exchange prohibit such deposit with the Trustee.
(b) Such Legal Defeasance defeasance or Covenant Defeasance will covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit.
(d) In the case of an election under clause (2) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the U.S. Internal Revenue Service a letter ruling, or there has been published by the U.S. Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution 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 shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for federal income tax purposes as a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 4.2, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto 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.
(f) The Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the case may be) have been complied with.
(g) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the "Trustee") against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Appears in 1 contract
Samples: Indenture (Cit Group Inc)
