Defeasance of Certain Obligations. The Corporation may take any action provided for in this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with respect to Securities of a series effective on the date the following conditions are satisfied: (1) with reference to this Section, the Corporation has deposited or caused to be deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for and dedicated solely to the benefit of the Holders of the Securities of that series, (a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on the due dates of any payment of principal of and interest, if any, on the Securities of that series lawful money of the United States in an amount, or (c) a combination thereof, sufficient to pay and discharge the principal of and interest, if any, on the Securities of that series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of the Securities of that series; (2) the Corporation has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law or a ruling published by the United States Internal Revenue Service, the defeasance will not be deemed, or result in, a taxable event with respect to the Holders; and (3) the Corporation has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel complying with Section 10.04 relating to the Corporation’s exercise of such option. The trust established pursuant to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effect.
Appears in 3 contracts
Samples: Indenture (Lockheed Martin Corp), Indenture (Lockheed Martin Corp), Indenture (Lockheed Martin Corp)
Defeasance of Certain Obligations. The Corporation may take any action provided for in If this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option may cease 4.04 is specified to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series any series, as to which the provisions of this Section are expressly made applicable by the set forth in an indenture supplemental hereto or Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with respect to such series, the Company may omit to comply with (or elect to have the obligation of the Guarantor released with respect to) any term, provision or condition set forth in the sections of this Indenture or such Security with respect to the Securities of a that series effective on the date the following conditions are satisfied(“Covenant Defeasance”) if:
(1) with reference to this SectionSection 4.04, the Corporation Company or the Guarantor has deposited or caused to be irrevocably deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that series,
(i) money in U.S. dollars (or if the Securities are denominated in a currency other than U.S. dollars, an amount of the applicable currency) in an amount sufficient, or
(ii) (a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment referred to in clause (A) or (B) of principal of and interest, if any, on the Securities of that series lawful this subparagraph money of the United States in an amount, or (cb) a combination thereofof such money and such U.S. Government Obligation, sufficient 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 discharge (A) the principal of (and interestpremium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities of that series on the Stated Maturity of such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to Securities of such series on the day on which such payments are due and payable in accordance with the terms of this the Indenture and of the Securities of that seriessuch Securities;
(2) such deposit shall not cause the Corporation has Trustee with respect to the Securities of that series to have a conflicting interest for purposes of the Trust Indenture Act with respect to the Securities of any series;
(3) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company or the Guarantor is a party or by which it is bound;
(4) if the deposit referred to in subparagraph (1) of this Section 4.04 is to be made on or prior to one year from the Stated Maturity for payment of principal of the Outstanding Securities, the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law Counsel with no material qualifications or a favorable ruling published by of the United States Internal Revenue Service, in either case to the defeasance effect that Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance of certain obligations and will be deemedsubject to federal income tax on the same amount and in the same manner and at the same times, or result in, a taxable event with respect to as would have been the Holderscase if such deposit and defeasance had not occurred; and
(35) the Corporation has Company and the Guarantor shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel complying with Section 10.04 (upon which the Trustee may conclusively rely) stating that all conditions precedent herein provided for relating to the Corporation’s exercise of such option. The trust established pursuant to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to defeasance contemplated by this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effect4.04 have been complied with.
Appears in 2 contracts
Samples: Indenture (Arch Capital Group (U.S.) Inc.), Indenture (Arch Capital Group Ltd.)
Defeasance of Certain Obligations. The Corporation may take any action provided for in this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation and the Guarantor at any time at its their option may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.01 and 5.02 and 6.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with respect to Securities of a series effective on the date the following conditions are satisfied:
(1) with reference to this Section, the Corporation has deposited or caused to be deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for and dedicated solely to the benefit of the Holders of the Securities of that series, (a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on the due dates of any payment of principal of and interest, if any, interest on the Securities of that series lawful money of the United States in an amount, or (c) Securities of that issue, or (d) a combination thereof, sufficient to pay and discharge the principal of and interest, if any, interest on the Securities of that series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of the Securities of that series;; and
(2) the Corporation has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law or a ruling published by the United States Internal Revenue Service, the defeasance will not be deemed, or result in, a taxable event with respect to the Holders; and
(3) the Corporation has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 11.04 relating to the Corporation’s 's exercise of such option. The trust established pursuant to clause subsection (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s 's election, grant the Corporation the right to substitute U.S. Government Obligations or Securities of the same series from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to this Section and the escrow trust agreement; provided, that the condition specified in clause subsection (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s 's exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effect.
Appears in 2 contracts
Samples: Indenture (Lockheed Martin Corp), Indenture (Lockheed Martin Corp)
Defeasance of Certain Obligations. The Corporation may take any action provided for in this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its their option may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.01 and 5.02 and 6.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with -38- respect to Securities of a series effective on the date the following conditions are satisfied:
(1) with reference to this Section, the Corporation has deposited or caused to be deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for and dedicated solely to the benefit of the Holders of the Securities of that series, (a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on the due dates of any payment of principal of and interest, if any, interest on the Securities of that series lawful money of the United States in an amount, or (c) Securities of that issue, or (d) a combination thereof, sufficient to pay and discharge the principal of and interest, if any, interest on the Securities of that series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of the Securities of that series;; and
(2) the Corporation has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law or a ruling published by the United States Internal Revenue Service, the defeasance will not be deemed, or result in, a taxable event with respect to the Holders; and
(3) the Corporation has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 relating to the Corporation’s 's exercise of such option. The trust established pursuant to clause subsection (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s 's election, grant the Corporation the right to substitute U.S. Government Obligations or Securities of the same series from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to this Section and the escrow trust agreement; provided, that the condition specified in clause subsection (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s 's exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effect.
Appears in 2 contracts
Samples: Indenture (Lockheed Martin Corp), Indenture (Lockheed Martin Corp)
Defeasance of Certain Obligations. The Corporation may take any action provided for in If this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option may cease 404 is specified to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series any series, as to which the provisions of this Section are expressly made applicable by the set forth in an indenture supplemental hereto or Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with respect to such series, the Company may omit to comply with (or elect to have the obligation of the Guarantor released with respect to) any term, provision or condition set forth in the sections of this Indenture or such Security with respect to the Securities of a that series effective on the date the following conditions are satisfied(“Covenant Defeasance”) if:
(1) with reference to this SectionSection 404, the Corporation Company or the Guarantor has deposited or caused to be irrevocably deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that series,
(i) money in U.S. dollars (or if the Securities are denominated in a currency other than U.S. dollars, an amount of the applicable currency) in an amount sufficient, or
(ii) (a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment referred to in clause (A) or (B) of principal of and interest, if any, on the Securities of that series lawful this subparagraph money of the United States in an amount, or (cb) a combination thereofof such money and such U.S. Government Obligation, sufficient 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 discharge (A) the principal of (and interestpremium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities of that series on the Stated Maturity of such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to Securities of such series on the day on which such payments are due and payable in accordance with the terms of this the Indenture and of the Securities of that seriessuch Securities;
(2) such deposit shall not cause the Corporation has Trustee with respect to the Securities of that series to have a conflicting interest for purposes of the Trust Indenture Act with respect to the Securities of any series;
(3) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company or the Guarantor is a party or by which it is bound;
(4) if the deposit referred to in subparagraph (1) of this Section 404 is to be made on or prior to one year from the Stated Maturity for payment of principal of the Outstanding Securities, the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law Counsel with no material qualifications or a favorable ruling published by of the United States Internal Revenue Service, in either case to the defeasance effect that Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance of certain obligations and will be deemedsubject to federal income tax on the same amount and in the same manner and at the same times, or result in, a taxable event with respect to as would have been the Holderscase if such deposit and defeasance had not occurred; and
(35) the Corporation has Company and the Guarantor shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel complying with Section 10.04 (upon which the Trustee may conclusively rely) stating that all conditions precedent herein provided for relating to the Corporation’s exercise of such option. The trust established pursuant to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to defeasance contemplated by this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effect404 have been complied with.
Appears in 2 contracts
Samples: Indenture (Arch Capital Group Ltd.), Indenture (Arch Capital Group Ltd.)
Defeasance of Certain Obligations. The Corporation may take any action provided for in this Section unless following provisions shall apply to the Securities of the affected each series unless specifically provide that this otherwise provided in a Board Resolution, Officers' Certificate or indenture supplemental hereto provided pursuant to Section shall not apply to the series301. The Corporation at any time at its option Company may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or omit to comply with any other covenants term, provision or agreements condition set forth in Article Ten and Section 301(12) and any such omission with respect Article Ten and to Section 301(12) shall not be an Event of Default, in each case with respect to the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03series, with respect to Securities of a series effective on the date provided that the following conditions are have been satisfied:
(1) with reference to this SectionSection 1005, the Corporation Company has deposited or caused to be irrevocably deposited with the Trustee irrevocably, (or another trustee satisfying the requirements of Section 609) as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that series, (ai) lawful money, in the currency or currencies in which Securities of that series are payable, money in an amount, or (bii) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment referred to in clause (A) or (B) of principal of and interest, if any, on the Securities of that series lawful this subparagraph (1) money of the United States in an amount, or (ciii) a combination thereof, sufficient 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 discharge (A) the principal of (and interestpremium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities on the Stated Maturity of such principal or installments of principal and interest and (B) any mandatory sinking fund payments or analogous payments applicable to the Securities of that such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of the Securities of that seriessuch Securities;
(2) such deposit shall not cause the Corporation Trustee with respect to the Securities of that series to have a conflicting interest as defined in Section 608 and for purposes of the Trust Indenture Act with respect to the Securities of any series;
(3) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(4) no Event of Default or event which with notice or lapse of time would become an Event of Default with respect to the Securities of that series shall have occurred and be continuing on the date of such deposit;
(5) the Company has delivered to the Trustee an Opinion of Counsel, Counsel to the effect thatthat Holders of the Securities of such series will not recognize income, based on applicable U.S. federal gain or loss for Federal income tax law or purposes as a ruling published by result of such deposit and defeasance of certain obligations and will be subject to Federal income tax on the United States Internal Revenue Service, same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance will had not be deemed, or result in, a taxable event with respect to the Holdersoccurred; and
(36) the Corporation Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 Counsel, each stating that all conditions precedent herein provided for relating to the Corporation’s exercise of such option. The trust established pursuant to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement defeasance contemplated in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effecthave been complied with.
Appears in 2 contracts
Samples: Indenture (Olympic Financial LTD), Indenture (Olympic Financial LTD)
Defeasance of Certain Obligations. The Corporation may take any action provided for in If this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option may cease section is specified to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series as any series, the Company may omit to which comply with (or elect to have the provisions obligations of the Guarantor released with respect to) any term, provision or condition set forth in the sections of this Section are expressly made applicable by the Board Resolution Indenture or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, such Security specified with respect to the Securities of a that series effective on the date the following conditions are satisfied("Covenant Defeasance") if:
(1) with reference to this Sectionsection, the Corporation Company or the Guarantor has deposited or caused to be irrevocably deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that series, (ai) lawful money, money in the currency or currencies in which Securities of that series are payable, U.S. dollars in an amountamount (or if the Securities are denominated in any currency other than U.S. dollars, an amount of the applicable currency), or (bii) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment referred to in clause (A) or (B) of principal of and interest, if any, on the Securities of that series lawful this subparagraph money of the United States in an amount, or (ciii) a combination thereof, sufficient 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 discharge (A) the principal of (and interestpremium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities of that series on the Stated Maturity of such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to Securities of such series on the day on which such payments are due and payable in accordance with the terms of this the Indenture and of the Securities of that seriessuch Securities;
(2) such deposit shall not cause the Corporation has Trustee with respect to the Securities of that series to have a conflicting interest for purposes of the Trust Indenture Act with respect to the Securities of any series;
(3) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company or the Guarantor is a party or by which it is bound;
(4) the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel, Counsel with no material qualifications to the effect thatthat Holders of the Securities will not recognize income, based on applicable U.S. gain or loss for United States federal income tax law or purposes as a ruling published by the result of such deposit and defeasance of certain obligations and will be subject to United States Internal Revenue Servicefederal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit and defeasance will had not be deemed, occurred;
(5) no Event of Default or result in, a taxable event which with notice or lapse of time would become an Event of Default with respect to the HoldersSecurities shall have occurred and be continuing on the date of such deposit after giving effect to such deposit; and
(36) the Corporation has Company and the Guarantor shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 Counsel, each stating that all conditions precedent herein provided for relating to the Corporation’s exercise of such option. The trust established pursuant to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to defeasance contemplated by this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effectsection have been complied with.
Appears in 2 contracts
Samples: Indenture (Xl Capital LTD), Indenture (Xl Capital LTD)
Defeasance of Certain Obligations. The Corporation Issuer may take any action provided for in this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or omit to comply with any other covenants term, provision or agreements of the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by condition set forth in Sections 2.01 801, 1004, 1005 and 2.03, 1006 with respect to the Securities of a series effective on the date any series, provided that the following conditions are shall have been satisfied:
(1) with reference to this Section, the Corporation The Issuer or any Guarantor has deposited or caused to be irrevocably deposited (except as provided in Section 402(c) and the last paragraph of Section 1003) with the Trustee irrevocably, (specifying that each deposit is pursuant to this Section 1008) as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that such series, (ai) lawful money, money in the currency or currencies units of currency in which such Securities of that series are payable, payable in an amount, or (bii) (except as provided in a supplemental indenture with respect to such series) if the Securities of that such series are payable in Dollarsnot subject to repurchase at the option of Holders, (A) U.S. Government Obligations (denominated in the same currency or units of currency in which such Securities are payable) which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment referred to in clause (x) or (y) of this subparagraph (1) money in an amount, or (B) a combination thereof, sufficient, 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 (x) the principal of (and premium, if any) and each installment of principal of (and premium, if any) and interest, if any, on the Outstanding Securities of that such series lawful money on the Stated Maturity of such principal or installment of principal or interest or to and including the United States in an amount, or Redemption Date irrevocably designated by the Issuer pursuant to subparagraph (c4) a combination thereof, sufficient of this Section and (y) any mandatory sinking fund payments applicable to pay and discharge the principal of and interest, if any, on the Securities of that such series on the day on which such payments are due and payable in accordance with the terms of this the Indenture and of the Securities of that such series;
(2) No Event of Default or event which with notice or lapse of time would become an Event of Default (including by reason of such deposit) with respect to the Corporation has Securities of such series shall have occurred and be continuing on the date of such deposit;
(3) The Issuer shall have delivered to the Trustee an Opinion of Counsel, Counsel to the effect that(i) that Holders of the Securities of such series will not recognize income, based on applicable U.S. federal gain or loss for Federal income tax law or purposes as a ruling published by the United States Internal Revenue Service, result of such deposit and defeasance of certain obligations; (ii) that such provision would not cause any outstanding Securities of such series then listed on any national securities exchange to be delisted as a result thereof; and (iii) that the defeasance will not be deemedtrust is not, or result inis registered as, a taxable event with respect to an investment company under the HoldersInvestment Company Act of 1940; and
(34) If the Corporation Issuer or any Guarantor has deposited or caused to be deposited money or U.S. Government Obligations to pay or discharge the principal of (and premium, if any) and interest, if any, on the Outstanding Securities of a series to and including a Redemption Date on which all of the Outstanding Securities of such series are to be redeemed, such Redemption Date shall be irrevocably designated by a Board Resolution delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel complying with Section 10.04 relating on or prior to the Corporation’s exercise date of deposit of such option. The trust established pursuant to clause (1) above money or U.S. Government obligations, and such Board Resolution shall be accompanied by an irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with Company Request that the Trustee pursuant to this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of give notice of such redemption by the Trustee in the name, name and at the expense, expense of the Corporation. The Corporation’s exercise of its option under this Section shall Issuer not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice less than 30 nor more than 60 days prior to such effectRedemption Date in accordance with Section 1104.
Appears in 1 contract
Samples: Indenture (Utilicorp United Inc)
Defeasance of Certain Obligations. The Corporation may take any action provided for in If this Section unless the section is specified to be applicable to Securities of any series as set forth in an indenture supplemental hereto or Board Resolution with respect to such series, the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option Company may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or omit to comply with any other covenants term, provision or agreements condition set forth in the sections of this Indenture or such Security with respect to the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with respect to Securities of a series effective on the date the following conditions are satisfied(“Covenant Defeasance”) if:
(1) with reference to this Sectionsection, the Corporation Company has deposited or caused to be irrevocably deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that series,
(i) money in U.S. dollars (or if the Securities are denominated in a currency other than U.S. dollars, an amount of the applicable currency) in an amount sufficient, or
(ii) (a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment referred to in clause (A) or (B) of principal of and interest, if any, on the Securities of that series lawful this subparagraph money of the United States in an amount, or (cb) a combination thereofof such money and such U.S. Government Obligation, sufficient 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 discharge (A) the principal of (and interestpremium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities of that series on the Stated Maturity of such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to Securities of such series on the day on which such payments are due and payable in accordance with the terms of this the Indenture and of the Securities of that seriessuch Securities;
(2) such deposit shall not cause the Corporation Trustee with respect to the Securities of that series to have a conflicting interest for purposes of the Trust Indenture Act with respect to the Securities of any series;
(3) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(4) if the deposit referred to in subparagraph (1) of this section is to be made on or prior to one year from the Stated Maturity for payment of principal of the Outstanding Securities, the Company has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law Counsel with no material qualifications or a favorable ruling published by of the United States Internal Revenue Service, in either case to the defeasance effect that Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance of certain obligations and will be deemedsubject to federal income tax on the same amount and in the same manner and at the same times, or result in, a taxable event with respect to as would have been the Holderscase if such deposit and defeasance had not occurred; and
(35) the Corporation Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel complying with Section 10.04 (upon which the Trustee may conclusively rely) stating that all conditions precedent herein provided for relating to the Corporation’s exercise of such option. The trust established pursuant to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to defeasance contemplated by this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effectsection have been complied with.
Appears in 1 contract
Samples: Indenture (Arch Capital Group LTD)
Defeasance of Certain Obligations. The Corporation may take any action provided for in this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, 5.1 with respect to Securities of a series effective on the date the following conditions are satisfied:
(1) with reference to this Section, the Corporation has deposited or caused to be deposited with the Trustee irrevocablyTrustee, as trust funds in trust, specifically pledged as security for and dedicated solely to the benefit of the Holders of the Securities of that series, (a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in DollarsU.S. dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on the due dates of any payment of principal of and interest, if any, interest on the Securities of that series lawful money of the United States in an amountamount or (c) Securities of that issue, or (cd) a combination thereof, sufficient to pay and discharge the principal of and interest, if any, interest on the Securities of that series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of the Securities of that series;
(2) the Corporation has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law or a ruling published by the United States Internal Revenue Service, the defeasance will not be deemed, or result in, a taxable event with respect to the Holders; and
(32) the Corporation has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel complying with Section 10.04 10.4 relating to the Corporation’s exercise of such option. The trust established pursuant to clause subsection (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations or Securities of the same series from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to this Section and the escrow trust agreement; provided, however, that the condition specified in clause subsection (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 8.2 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effect.
Appears in 1 contract
Defeasance of Certain Obligations. The Corporation may take any action provided for in If this Section unless the section is specified to be applicable to Securities of any series as set forth in an indenture supplemental hereto or Board Resolution with respect to such series, the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option Company may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or omit to comply with any other covenants term, provision or agreements condition set forth in the sections of this Indenture or such Security with respect to the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with respect to Securities of a series effective on the date the following conditions are satisfied("COVENANT DEFEASANCE") if:
(1i) with reference to this Sectionsection, the Corporation Company has deposited or caused to be irrevocably deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that series,
(1) money in U.S. dollars (or if the Securities are denominated in a currency other than U.S. dollars, an amount of the applicable currency) in an amount sufficient, or
(a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment referred to in clause (A) or (B) of principal of and interest, if any, on the Securities of that series lawful this subparagraph money of the United States in an amount, or (cb) a combination thereofof such money and such U.S. Government Obligation, sufficient 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 discharge (A) the principal of (and interestpremium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities of that series on the Stated Maturity of such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to Securities of such series on the day on which such payments are due and payable in accordance with the terms of this the Indenture and of such Securities;
(ii) such deposit shall not cause the Trustee with respect to the Securities of that series to have a conflicting interest for purposes of the Trust Indenture Act with respect to the Securities of any series;
(2iii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Corporation Company is a party or by which it is bound, other than a default arising as a result of Liens incurred on the stock of any subsidiary of the Company to secure borrowings providing funds for the deposit referred to in subparagraph (1) of this Section;
(iv) if the deposit referred to in subparagraph (1) of this section is to be made on or prior to one year from the Stated Maturity for payment of principal of the Outstanding Securities, the Company has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law Counsel with no material qualifications or a favorable ruling published by of the United States Internal Revenue Service, in either case to the defeasance effect that Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance of certain obligations and will be deemedsubject to federal income tax on the same amount and in the same manner and at the same times, or result in, a taxable event with respect to as would have been the Holderscase if such deposit and defeasance had not occurred; and
(3v) the Corporation Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 (upon which the Trustee may conclusively rely) stating that all conditions precedent herein provided for relating to the Corporation’s exercise of such option. The trust established pursuant to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to defeasance contemplated by this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effectsection have been complied with.
Appears in 1 contract
Defeasance of Certain Obligations. The Corporation may take any action provided for in If this Section unless the is specified, as contemplated by Section 301, to be applicable to Securities of any series, the affected series specifically provide that this Section shall not apply to Guarantor and the series. The Corporation at any time at its option Company may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or omit to comply with any other covenants term, provision or agreements of the Corporation applicable condition set forth in Sections 1007 to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.031009, inclusive, with respect to the Securities of a series effective on the date such series, provided that the following conditions are shall have been satisfied:
(1) with With reference to this SectionSection 1010, the Corporation Company has deposited or caused to be irrevocably deposited (except as provided in Section 403) with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of such Securities (i) in the case of Securities of that seriessuch series denominated in U.S. dollars, cash in U.S. dollars (a) lawful money, or such other money or currencies as shall then be legal tender in the currency or currencies in which Securities of that series are payable, in an amountUnited States) and/or U.S. Government obligations, or (bii) if in the case of Securities of that such series are payable denominated in Dollarsa Foreign Currency (other than a basket currency), U.S. money and/or Foreign Government Obligations Securities in the same Foreign Currency, which through the payment of interest and principal in respect thereof thereof, in accordance with their terms (andterms, as to callable U.S. Government Obligations, regardless of when they are called) will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than the opening of business on one day before the due dates date of any payment of principal money, an amount in cash, sufficient, in the opinion of and interesta nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, if any, on the Securities of that series lawful money of the United States in an amount, or (c) a combination thereof, sufficient to pay and discharge the each installment of principal of (and interestpremium, if any, ) (including mandatory sinking fund or analogous payments) of and any interest on all the Securities of that such series on the day on which dates such payments installments of interest or principal are due and payable in accordance with the terms of this Indenture and of the Securities of that seriesdue;
(2) Such deposit shall not, in the Corporation Opinion of Counsel, cause the Trustee with respect to the Securities of such series to have a conflicting interest as defined in Section 608 and for purposes of the Trust Indenture Act with respect to the Securities of such series;
(3) Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(4) No Event of Default or event which with notice or lapse of time 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;
(5) The Company has delivered to the Trustee an Opinion of Counsel, Counsel to the effect that, based on applicable U.S. federal that (x) Holders of the Securities of such series will not recognize income gain or loss for Federal income tax law or purposes as a ruling published by result of such deposit and defeasance of certain obligations and will be subject to Federal income tax on the United States Internal Revenue Servicesame amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred and (y) upon the 91st day after the date of such deposit, the defeasance will trust funds would not be deemed, or result in, subject to being characterized as a taxable event with respect to the Holderspreference for Bankruptcy Law purposes; and
(36) the Corporation The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel complying with Section 10.04 each stating that all conditions precedent herein provided for relating to the Corporation’s exercise of such option. The trust established pursuant to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to defeasance contemplated by this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effecthave been complied with.
Appears in 1 contract
Samples: Indenture (Hilfiger Tommy Corp)
Defeasance of Certain Obligations. The Corporation may take any action provided for in this Section unless following provisions shall apply to the Securities of the affected each series unless specifically provide that this otherwise provided in a Board Resolution, Officers' Certificate or indenture supplemental hereto provided pursuant to Section shall not apply to the series301. The Corporation at any time at its option Company may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or omit to comply with any other covenants term, provision or agreements condition set forth in Sections 1005 and 1006 and any such omission with respect to Sections 1005 and 1006 shall not be an Event of Default, in each case with respect to the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03series, with respect to Securities of a series effective on the date provided that the following conditions are have been satisfied:
(1) with reference to this SectionSection 1008, the Corporation Company has deposited or caused to be irrevocably deposited with the Trustee irrevocably, (or another trustee satisfying the requirements of Section 609) as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that series, (ai) lawful money, in the currency or currencies in which Securities of that series are payable, money in an amount, or (bii) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment referred to in clause (A) or (B) of principal of and interest, if any, on the Securities of that series lawful this subparagraph (1) money of the United States in an amount, or (ciii) a combination thereof, sufficient 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 discharge (A) the principal of (and interestpremium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities on the Stated Maturity of such principal or installments of principal and interest and (B) any mandatory sinking fund payments or analogous payments applicable to the Securities of that such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of the Securities of that seriessuch Securities;
(2) such deposit shall not cause the Corporation Trustee with respect to the Securities of that series to have a conflicting interest as defined in Section 608 and for purposes of the Trust Indenture Act with respect to the Securities of any series; (3) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; (4) no Event of Default or event which with notice or lapse of time would become an Event of Default with respect to the Securities of that series shall have occurred and be continuing on the date of such deposit; (5) the Company has delivered to the Trustee an Opinion of Counsel, Counsel to the effect thatthat Holders of the Securities of such series will not recognize income, based on applicable U.S. federal gain or loss for Federal income tax law or purposes as a ruling published by result of such deposit and defeasance of certain obligations and will be subject to Federal income tax on the United States Internal Revenue Service, same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance will had not be deemed, or result in, a taxable event with respect to the Holdersoccurred; and
(36) the Corporation Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 Counsel, each stating that all conditions precedent herein provided for relating to the Corporation’s exercise of such option. The trust established pursuant to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement defeasance contemplated in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effecthave been complied with.
Appears in 1 contract
Samples: Indenture (Fingerhut Companies Inc)
Defeasance of Certain Obligations. The Corporation may take any action provided for in this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its their option may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 4.07 and 6.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, 6.02 with respect to the Securities of a series effective on the date the following conditions are satisfied:
(1) with reference to this SectionSection 8.03, the Corporation has deposited or caused to be deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for and dedicated solely to the benefit of the Holders of the Securities of that seriesHolders, (a) lawful money, in the currency or currencies in which Securities of that series are payable, money in an amount, or (b) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on the due dates of any payment of principal of and interest, if any, interest on the Securities of that series lawful money of the United States in an amount, or (c) a combination thereof, sufficient to pay and discharge the principal of and interest, if any, interest on the Securities of that series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of the Securities of that seriesSecurities;
(2) the Corporation has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law or a ruling published by the United States Internal Revenue Service, the defeasance will not be deemed, or result in, a taxable event with respect to the Holders; and
(3) the Corporation has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel complying with Section 10.04 relating to the Corporation’s exercise of such option. The trust established pursuant to clause subsection (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to this Section 8.03 and the escrow trust agreement; provided, that the condition specified in clause subsection (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions provisions, the applicable escrow trust agreement shall provide therefor therefore and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section 8.03 shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effect.
Appears in 1 contract
Samples: Indenture (Lockheed Martin Corp)
Defeasance of Certain Obligations. The Corporation may take any action provided for in this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its their option may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 5.01 and 6.025.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 2.1 and 2.032.3, with respect to Securities of a series effective on the date the following conditions are satisfied:
(1) with reference to this Section, the Corporation has deposited or caused to be deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for and dedicated solely to the benefit of the Holders of the Securities of that series, (a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on the due dates of any payment of principal of and interest, if any, on the Securities of that series lawful money of the United States in an amount, or (c) Securities of that issue, or (d) a combination thereof, sufficient to pay and discharge the principal of and interest, if any, on the Securities of that series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of the Securities of that series;
(2) the Corporation has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law or a ruling published by the United States Internal Revenue Service, the defeasance will not be deemed, or result in, a taxable event with respect to the Holders; and
(32) the Corporation has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel complying with Section 10.04 relating to the Corporation’s exercise of such option. The trust established pursuant to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations or Securities of the same series from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effect.
Appears in 1 contract
Samples: Indenture (Lockheed Martin Corp)
Defeasance of Certain Obligations. The Corporation may take any action provided for in If this Section unless the 404 is specified to be applicable to Securities of any series, the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option Company may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or omit to comply with any other covenants term, provision or agreements condition set forth in the sections of this Indenture or such Security with respect to the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with respect to Securities of a series effective on the date the following conditions are satisfied("Covenant Defeasance") if:
(1) with reference to this Section, the Corporation Company has deposited or caused to be irrevocably deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that series,
(i) money in U.S. dollars (or if the Securities are denominated in a currency other than U.S. dollars, an amount of the applicable currency) in an amount sufficient, or
(ii) (a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment of principal of and interest, if any, on the Securities of that series lawful referred to in Section 401(A) or (B) money of the United States in an amount, or (cb) a combination thereofof such money and such U.S. Government Obligation, sufficient 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 discharge (A) the principal of (and interestpremium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities of that series on the Stated Maturity of such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to Securities of such series on the day on which such payments are due and payable in accordance with the terms of this the Indenture and of the Securities of that seriessuch Securities;
(2) such deposit shall not cause the Corporation Trustee with respect to the Securities of that series to have a conflicting interest for purposes of the Trust Indenture Act with respect to the Securities of any series;
(3) such deposit will not result in a breach or violation of, or constitute a default under, any applicable laws, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(4) if the deposit referred to in subparagraph (1) of this Section 404 is to be made on or prior to one year from the Stated Maturity for payment of principal of the Outstanding Securities, the Company has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law Counsel with no material qualifications or a favorable ruling published by of the United States Internal Revenue Service, in either case to the defeasance effect that Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance of certain obligations and will be deemedsubject to federal income tax on the same amount and in the same manner and at the same times, or result in, a taxable event with respect to as would have been the Holderscase if such deposit and defeasance had not occurred; and
(35) the Corporation Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 Counsel, each stating that all conditions precedent herein provided for relating to the Corporation’s exercise Covenant Defeasance contemplated by this Section 404 have been complied with. In the event the Company effects Covenant Defeasance with respect to any Securities and such Securities are declared due and payable because of such option. The trust established pursuant the occurrence of any Event of Default, other than an Event of Default with respect to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory any covenant as to the Trustee. The escrow trust agreement maywhich there has been Covenant Defeasance, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited on deposit with the Trustee pursuant will be sufficient to this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any pay amounts due on such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, time of the Corporation. The Corporation’s exercise Stated Maturity but may not be sufficient to pay amounts due on such Securities at the time of its option under this Section shall not preclude the Corporation acceleration resulting from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effectEvent of Default.
Appears in 1 contract
Samples: Indenture (Nelnet Inc)
Defeasance of Certain Obligations. The Corporation may take any action provided for in this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its their option may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.01 and 5.02 and 6.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with -38- respect to Securities of a series effective on the date the following conditions are satisfied:
(1) with reference to this Section, the Corporation has deposited or caused to be deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for and dedicated solely to the benefit of the Holders of the Securities of that series, (a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on the due dates of any payment of principal of and interest, if any, interest on the Securities of that series lawful money of the United States in an amount, or (c) Securities of that issue, or (d) a combination thereof, sufficient to pay and discharge the principal of and interest, if any, interest on the Securities of that series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of the Securities of that series;
; and (2) the Corporation has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law or a ruling published by the United States Internal Revenue Service, the defeasance will not be deemed, or result in, a taxable event with respect to the Holders; and
(3) the Corporation has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 relating to the Corporation’s 's exercise of such option. The trust established pursuant to clause subsection (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s 's election, grant the Corporation the right to substitute U.S. Government Obligations or Securities of the same series from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to this Section and the escrow trust agreement; provided, that the condition specified in clause subsection (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s 's exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effect.
Appears in 1 contract
Samples: Indenture (Lockheed Martin Corp)
Defeasance of Certain Obligations. The Corporation may take any action provided for in If this Section unless the section is specified to be applicable to Securities of any series, the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option Company may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or omit to comply with any other covenants term, provision or agreements condition set forth in the sections of this Indenture or such Security with respect to the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with respect to Securities of a series effective on the date the following conditions are satisfied("Covenant Defeasance") if:
(1) with reference to this Sectionsection, the Corporation Company has deposited or caused to be irrevocably deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that series, (ai) lawful money, money in the currency or currencies in which Securities of that series are payable, dollars in an amountamount (or if the Securities are denominated in any currency other than dollars, an amount of the applicable currency), or (bii) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment referred to in clause (A) or (B) of principal of and interest, if any, on the Securities of that series lawful this subparagraph money of the United States in an amount, or (ciii) a combination thereof, sufficient 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 discharge (A) the principal of (and interestpremium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities of that series on the Stated Maturity of such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to Securities of such series on the day on which such payments are due and payable in accordance with the terms of this the Indenture and of the Securities of that seriessuch Securities;
(2) such deposit shall not cause the Corporation Trustee with respect to the Securities of that series to have a conflicting interest for purposes of the Trust Indenture Act with respect to the Securities of any series;
(3) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(4) the Company has 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;
(5) if the deposit referred to in subparagraph (1) of this section is to be made on or prior to one year from the Stated Maturity for payment of principal of the Outstanding Securities, the Company has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law Counsel with no material qualifications or a favorable ruling published by of the United States Internal Revenue Service, in either case to the defeasance effect that Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance of certain obligations and will be deemedsubject to federal income tax on the same amount and in the same manner and at the same times, or result in, a taxable event with respect to as would have been the Holderscase if such deposit and defeasance had not occurred; and
(36) the Corporation Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 Counsel, each stating that all conditions precedent herein provided for relating to the Corporation’s exercise defeasance contemplated by this section have been complied with. In the event the Company effects Covenant Defeasance with respect to any Securities and such Securities are declared due and payable because of such option. The trust established pursuant the occurrence of any Event of Default, other than an Event of Default with respect to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory any covenant as to the Trustee. The escrow trust agreement maywhich there has been Covenant Defeasance, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited on deposit with the Trustee pursuant will be sufficient to this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any pay amounts due on such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, time of the Corporation. The Corporation’s exercise Stated Maturity but may not be sufficient to pay amounts due on such Securities at the time of its option under this Section shall not preclude the Corporation acceleration resulting from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effectEvent of Default.
Appears in 1 contract
Samples: Indenture (Xl Capital LTD)
Defeasance of Certain Obligations. The Corporation may take any action provided for in this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, 5.1 with respect to Securities of a series effective on the date the following conditions are satisfied:
(1) with reference to this Section, the Corporation has deposited or caused to be deposited with the Trustee irrevocablyTrustee, as trust funds in trust, specifically pledged as security for and dedicated solely to the benefit of the Holders of the Securities of that series, (a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in DollarsU.S. dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on the due dates of any payment of principal of and interest, if any, interest on the Securities of that series lawful money of the United States in an amountamount or (c) Securities of that issue, or (cd) a combination thereof, sufficient to pay and discharge the principal of and interest, if any, interest on the Securities of that series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of the Securities of that series;
(2) the Corporation has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law or a ruling published by the United States Internal Revenue Service, the defeasance will not be deemed, or result in, a taxable event with respect to the Holders; and
(32) the Corporation has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel complying with Section 10.04 11.4 relating to the Corporation’s exercise of such option. The trust established pursuant to clause subsection (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations or Securities of the same series from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to this Section and the escrow trust agreement; provided, however, that the condition specified in clause subsection (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 8.2 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effect.
Appears in 1 contract
Defeasance of Certain Obligations. The Corporation may take any action provided for in If this Section unless the section is specified to be applicable to Securities of any series, the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option Company may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or omit to comply with any other covenants term, provision or agreements condition set forth in the sections of this Indenture or such Security with respect to the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with respect to Securities of a series effective on the date the following conditions are satisfied:if
(1) with reference to this Sectionsection, the Corporation Company has deposited or caused to be irrevocably deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that series, (ai) lawful money, in the currency or currencies in which Securities of that series are payable, money in an amount, or (bii) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment referred to in clause (A) or (B) of principal of and interest, if any, on the Securities of that series lawful this subparagraph money of the United States in an amount, or (ciii) a combination thereof, sufficient 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 discharge (A) the principal of (and interestpremium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities of that series on the Stated Maturity of such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to Securities of such series on the day on which such payments are due and payable in accordance with the terms of this the Indenture and of the Securities of that seriessuch Securities;
(2) the Corporation has delivered to such deposit shall not cause the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law or a ruling published by the United States Internal Revenue Service, the defeasance will not be deemed, or result in, a taxable event with respect to the Holders; andSecurities of that series to have a conflicting interest for purposes of the Trust Indenture Act with respect to the Securities of any series;
(3) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Corporation Company is a party or by which it is bound;
(4) the Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 to the effect that the Company has received from, or there has been published by, the Internal Revenue Service a ruling to the effect that Holders of the Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and defeasance of certain obligations and will be subject to Federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit and defeasance had not occurred; and
(5) 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 Corporation’s exercise of such optiondefeasance contemplated by this section have been complied with. The trust established pursuant to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effect.ARTICLE FIVE
Appears in 1 contract
Samples: Indenture (360networks Inc)
Defeasance of Certain Obligations. (1) The Corporation Company may take omit to comply with, and this Indenture shall no longer be in effect with respect to the obligations of the Company set forth in, any action provided for in this Section unless term, provision or condition set forth in, Sections 4.04 and 4.08, and any term, provision, condition, covenant or other obligation with respect to the Securities of the affected such series specifically provide specified pursuant to Section 2.03 or 9.01 and (2) Section 6.01(c) and Section 6.01(d), and any Event of Default specified pursuant to Section 2.03 or 9.01, shall no longer constitute an Event of Default; provided that this Section shall not apply to the series. The Corporation at any time at its option may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with respect to Securities of a series effective on the date the following conditions are have been satisfied:
(1a) with reference to this Sectionprovision, the Corporation Company has deposited or caused to be irrevocably deposited with the Trustee irrevocablyTrustee, as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that such series, (a) lawful money, money or the equivalent in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless or any combination thereof, sufficient, in the opinion of when they are calleda nationally recognized investment bank, appraisal firm or firm of independent public accountants, for payment of all (x) will provide not later than the opening principal of, premium, if any, and each installment of business interest on the outstanding Securities of such series on the due dates of thereof and (y) any payment of principal of and interest, if any, on Mandatory Sinking Fund Payments or analogous payments applicable to the Securities of that series lawful money of the United States in an amount, or (c) a combination thereof, sufficient to pay and discharge the principal of and interest, if any, on the Securities of that such series on the day on which such payments are due and payable in accordance with the terms of this Securities of such series and the Indenture and of with respect to the Securities of that such series, and the Company has specified to the Trustee whether the Securities are being defeased to such due date for payment or to a particular redemption date;
(2b) the Corporation Company has delivered to the Trustee an Opinion of CounselCounsel confirming that the Holders of the outstanding Securities of such series will not recognize income, to the effect that, based on applicable gain or loss for U.S. federal income tax law purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred;
(c) no default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a ruling published by default or Event of Default resulting from the United States Internal Revenue Service, borrowing of funds to be applied to such deposit);
(d) the defeasance will not be deemedresult in a breach or violation of, or result inconstitute a Default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a taxable event with respect party or by which the Company or any of its Subsidiaries is bound;
(e) the Company has deliver to the HoldersTrustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Securities of such series over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others; and
(3f) the Corporation Company has delivered to the Trustee an Officers’ and Officer’s Certificate and an Opinion of Counsel complying with Section 10.04 Counsel, each stating that all conditions precedent relating to the Corporation’s exercise of such option. The trust established pursuant to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effectdefeasance have been complied with.
Appears in 1 contract
Defeasance of Certain Obligations. The Corporation may take any action provided for in this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option may cease to be under any obligation to comply with Sections 4.034.3, 4.044.4, 4.064.6, 4.07, 5.01, 5.02 5.1 and 6.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, 5.2 with respect to Securities of a series effective on the date the following conditions are satisfied:
(1) with reference to this Section, the Corporation has deposited or caused to be deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for and dedicated solely to the benefit of the Holders of the Securities of that series, (a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in DollarsU.S. dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on the due dates of any payment of principal of and interest, if any, interest on the Securities of that series lawful money of the United States in an amount, or (c) Securities of that issue, or (d) a combination thereof, sufficient to pay and discharge the principal of and interest, if any, interest on the Securities of that series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of the Securities of that series;; and
(2) the Corporation has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law or a ruling published by the United States Internal Revenue Service, the defeasance will not be deemed, or result in, a taxable event with respect to the Holders; and
(3) the Corporation has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 10.4 relating to the Corporation’s 's exercise of such option. The trust established pursuant to clause subsection (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s 's election, grant the Corporation the right to substitute U.S. Government Obligations or Securities of the same series from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to this Section and the escrow trust agreement; provided, however, that the condition specified in clause subsection (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effect.optional
Appears in 1 contract
Defeasance of Certain Obligations. The Corporation may take any action provided for in If this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option may cease 4.04 is specified to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or to comply with any other covenants or agreements of the Corporation applicable to Securities of that series as any series, the Company may omit to which comply with (or elect to have the provisions obligations of the Guarantor released with respect to) any term, provision or condition set forth in the sections of this Section are expressly made applicable by the Board Resolution Indenture or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, such Security specified with respect to the Securities of a that series effective on the date the following conditions are satisfied("COVENANT DEFEASANCE") if:
(1) with reference to this SectionSection 4.04, the Corporation Company or the Guarantor has deposited or caused to be irrevocably deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that series, (ai) lawful money, money in the currency or currencies in which Securities of that series are payable, U.S. dollars in an amountamount (or if the Securities are denominated in any currency other than U.S. dollars, an amount of the applicable currency), or (bii) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment referred to in clause (A) or (B) of principal of and interest, if any, on the Securities of that series lawful this subparagraph money of the United States in an amount, or (ciii) a combination thereof, sufficient sufficient, in the opinion of a nationally recognized investment banking firm or firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge (A) the principal of (and interestpremium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities of that series on the Stated Maturity of such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of the Securities of that seriessuch Securities;
(2) such deposit shall not cause the Corporation has Trustee with respect to the Securities of that series to have a conflicting interest for purposes of the Trust Indenture Act with respect to the Securities of any series;
(3) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company or the Guarantor is a party or by which it is bound;
(4) the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel, Counsel with no material qualifications to the effect thatthat Holders of the Securities will not recognize income, based on applicable U.S. gain or loss for United States federal income tax law or purposes as a ruling published by the result of such deposit and defeasance of certain obligations and will be subject to United States Internal Revenue Servicefederal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit and defeasance will had not be deemed, occurred;
(5) no Event of Default or result in, a taxable event which with notice or lapse of time would become an Event of Default with respect to the HoldersSecurities shall have occurred and be continuing on the date of such deposit after giving effect to such deposit; and
(36) the Corporation has Company and the Guarantor shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 Counsel, each stating that all conditions precedent herein provided for relating to the Corporation’s exercise of such option. The trust established pursuant to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited with the Trustee pursuant to defeasance contemplated by this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s exercise of its option under this Section shall not preclude the Corporation from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effect4.04 have been complied with.
Appears in 1 contract
Samples: Indenture (Xl Capital LTD)
Defeasance of Certain Obligations. The Corporation may take any action provided for in If this Section unless the 4.04 is specified to be applicable to Securities of any series, the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option Company may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or omit to comply with any other covenants term, provision or agreements condition set forth in the sections of this Indenture or such Security with respect to the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with respect to Securities of a series effective on the date the following conditions are satisfied(“Covenant Defeasance”) if:
(1) with reference to this Section, the Corporation Company has deposited or caused to be irrevocably deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that series,
(i) money in U.S. dollars (or if the Securities are denominated in a currency other than U.S. dollars, an amount of the applicable currency) in an amount sufficient, or
(ii) (a) lawful money, in the currency or currencies in which Securities of that series are payable, in an amount, or (b) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment of principal of and interest, if any, on the Securities of that series lawful referred to in Section 4.01(A) or (B) money of the United States in an amount, or (cb) a combination thereofof such money and such U.S. Government Obligation, sufficient 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 discharge (A) the principal of (and interestpremium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities of that series on the Stated Maturity of such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to Securities of such series on the day on which such payments are due and payable in accordance with the terms of this the Indenture and of the Securities of that seriessuch Securities;
(2) such deposit shall not cause the Corporation Trustee with respect to the Securities of that series to have a conflicting interest for purposes of the Trust Indenture Act with respect to the Securities of any series;
(3) such deposit will not result in a breach or violation of, or constitute a default under, any applicable laws, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(4) if the deposit referred to in subparagraph (1) of this Section 4.04 is to be made on or prior to one year from the Stated Maturity for payment of principal of the Outstanding Securities, the Company has delivered to the Trustee an Opinion of CounselCounsel with no material qualifications or a favorable ruling of the United States Internal Revenue Service, in either case to the effect thatthat Holders of the Securities will not recognize income, based on applicable U.S. gain or loss for federal income tax law or purposes as a result of such deposit and defeasance of certain obligations and will be subject to federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit and defeasance had not occurred, and such Opinion of Counsel, in the case of defeasance, must refer to and be based upon a letter ruling of the United States Internal Revenue Service received by the Company, a Revenue Ruling published by the United States Internal Revenue Service, Service or a change in applicable federal income tax law occurring after the defeasance will not be deemed, or result in, a taxable event with respect to the Holdersdate of this Indenture; and
(35) the Corporation Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel complying with Section 10.04 Counsel, each stating that all conditions precedent herein provided for relating to the Corporation’s exercise Covenant Defeasance contemplated by this Section 4.04 have been complied with. In the event the Company effects Covenant Defeasance with respect to any Securities and such Securities are declared due and payable because of such option. The trust established pursuant the occurrence of any Event of Default, other than an Event of Default with respect to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory any covenant as to the Trustee. The escrow trust agreement maywhich there has been Covenant Defeasance, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited on deposit with the Trustee pursuant will be sufficient to this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any pay amounts due on such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, time of the Corporation. The Corporation’s exercise Stated Maturity but may not be sufficient to pay amounts due on such Securities at the time of its option under this Section shall not preclude the Corporation acceleration resulting from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effectEvent of Default.
Appears in 1 contract
Samples: Indenture (Financial Security Assurance Holdings LTD)
Defeasance of Certain Obligations. The Corporation Company may take any action provided for in this Section unless the Securities of the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or omit to comply with any other covenants term, provision or agreements of the Corporation applicable condition set forth in Section 801 or in Sections 1004 to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.031006, inclusive, hereof with respect to the Securities of a series effective on the date any series, PROVIDED that the following conditions are shall have been satisfied:
(1) with reference to this Section, the Corporation Company has deposited or caused to be irrevocably deposited (except as provided in Section 402(c) hereof and the last paragraph of Section 1003 hereof) with the Trustee irrevocably, (specifying that each deposit is pursuant to this Section 1008) as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that such series, (ai) lawful money, money in the currency or currencies units of currency in which such Securities of that series are payable, payable in an amount, or (bii) (except as provided in a supplemental indenture with respect to such series) if the Securities of that such series are not subject to repurchase at the option of Holders and if such Securities are payable in U.S. Dollars, (A) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment referred to in clause (x) or (y) of this subparagraph (1) money in an amount, or (B) a combination thereof, in each case sufficient, in the report 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 the Trustee shall be instructed to apply to pay and discharge, (x) the principal of (and premium, if any) and each installment of principal of (and premium, if any) and interest, if any, on the Outstanding Securities of that such series lawful money on the Stated Maturity of such principal or installment of principal or interest or to and including the United States in an amount, or Redemption Date irrevocably designated by the Company pursuant to subparagraph (c4) a combination thereof, sufficient of this Section 1008 and (y) any mandatory sinking fund payments applicable to pay and discharge the principal of and interest, if any, on the Securities of that such series on the day on which such payments are due and payable in accordance with the terms of this the Indenture and of the Securities of that such series;
(2) no Event of Default or event which with notice or lapse of time would become an Event of Default (including by reason of such deposit) with respect to the Corporation has Securities of such series shall have occurred and be continuing on the date of such deposit;
(3) the Company shall have delivered to the Trustee an Opinion of Counsel, Counsel to the effect that(i) that Holders of the Securities of such series will not recognize income, based on applicable U.S. federal gain, loss or expense for Federal income tax law purposes as a result of such deposit and defeasance of certain obligations and will take into account all items of income, gain, loss or a ruling published by the United States Internal Revenue Service, the defeasance will not be deemed, or result in, a taxable event expense with respect to the HoldersSecurities at the same time and in the same manner as if such deposit and defeasance had not taken place; (ii) that such provision would not cause any outstanding Securities of such series then listed on any national securities exchange to be delisted as a result thereof; and (iii) that the defeasance trust is not, or is registered as, an investment company under the Investment Company Act of 1940;
(4) if the Company has deposited or caused to be deposited money or U.S. Government Obligations to pay or discharge the principal of (and premium, if any) and interest, if any, on the Outstanding Securities of a series to and including a Redemption Date on which all of the Outstanding Securities of such series are to be redeemed, such Redemption Date shall be irrevocably designated by a Board Resolution delivered to the Trustee on or prior to the date of deposit of such money or U.S. Government Obligations, and such Board Resolution shall be accompanied by an irrevocable Company Request that the Trustee give notice of such redemption in the name and at the expense of the Company not less than 30 nor more than 60 days prior to such Redemption Date in accordance with Section 1104 hereof; and
(35) the Corporation Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 Counsel, each stating that all conditions precedent herein provided for relating to the Corporation’s exercise of such option. The trust established pursuant to clause (1) above shall be irrevocable satisfaction and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. The escrow trust agreement may, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all discharge of the U.S. Government Obligations deposited with Securities have been complied with. Upon the Trustee pursuant to this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation. The Corporation’s Company's exercise of its option under to have this Section applied to the Securities of any series, (1) the Company shall be released from its obligations under Sections 801 and Sections 1004 through 1006, inclusive, and (2) the occurrence of any event specified in Section 501(d) (with respect to any of Section 801 and Sections 1004 through 1006, inclusive) shall be deemed not preclude to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the Corporation date the conditions set forth above are satisfied (hereinafter called "Covenant Defeasance"). For this purpose, Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 501(d)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby. Notwithstanding anything herein to the contrary, no Covenant Defeasance shall release any successor Person referred to in Article Eight from subsequently exercising its option obligations to assume the obligations of the Company under Section 8.02 hereof and 607 as a condition to the Corporation may so exercise that option consummation of any transaction contemplated by providing the Trustee with written notice to such effectSection 801.
Appears in 1 contract
Defeasance of Certain Obligations. The Corporation may take any action provided for in If this Section unless the section is specified to be applicable to Securities of any series, the affected series specifically provide that this Section shall not apply to the series. The Corporation at any time at its option Company may cease to be under any obligation to comply with Sections 4.03, 4.04, 4.06, 4.07, 5.01, 5.02 and 6.02, or omit to comply with any other covenants term, provision or agreements condition set forth in the sections of this Indenture or such Security with respect to the Corporation applicable to Securities of that series as to which the provisions of this Section are expressly made applicable by the Board Resolution or Resolutions or supplemental indenture contemplated by Sections 2.01 and 2.03, with respect to Securities of a series effective on the date the following conditions are satisfied("Covenant Defeasance") if:
(1) with reference to this Sectionsection, the Corporation Company has deposited or caused to be irrevocably deposited with the Trustee irrevocably, as trust funds in trust, specifically pledged as security for for, and dedicated solely to to, the benefit of the Holders of the Securities of that series, (ai) lawful money, money in the currency or currencies in which Securities of that series are payable, dollars in an amountamount (or if the Securities are denominated in any currency other than dollars, an amount of the applicable currency), or (bii) if the Securities of that series are payable in Dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (and, as to callable U.S. Government Obligations, regardless of when they are called) will provide not later than the opening of business on one day before the due dates date of any payment referred to in clause (A) or (B) of principal of and interest, if any, on the Securities of that series lawful this subparagraph money of the United States in an amount, or (ciii) a combination thereof, sufficient 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 discharge (A) the principal of (and interestpremium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities of that series on the Stated Maturity of such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to Securities of such series on the day on which such payments are due and payable in accordance with the terms of this the Indenture and of the Securities of that seriessuch Securities;
(2) such deposit shall not cause the Corporation Trustee with respect to the Securities of that series to have a conflicting interest for purposes of the Trust Indenture Act with respect to the Securities of any series;
(3) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(4) if the deposit referred to in subparagraph (1) of this section is to be made on or prior to one year from the Stated Maturity for payment of principal of the Outstanding Securities, the Company has delivered to the Trustee an Opinion of Counsel, to the effect that, based on applicable U.S. federal income tax law Counsel with no material qualifications or a favorable ruling published by of the United States Internal Revenue Service, in either case to the defeasance effect that Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance of certain obligations and will be deemedsubject to federal income tax on the same amount and in the same manner and at the same times, or result in, a taxable event with respect as would have been the case if such deposit and defeasance had not occurred;
(5) the Company has delivered to the HoldersTrustee an Officer's Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company; and
(36) the Corporation Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel complying with Section 10.04 Counsel, each stating that all conditions precedent herein provided for relating to the Corporation’s exercise defeasance contemplated by this section have been complied with. In the event the Company effects Covenant Defeasance with respect to any Securities and such Securities are declared due and payable because of such option. The trust established pursuant the occurrence of any Event of Default, other than an Event of Default with respect to clause (1) above shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory any covenant as to the Trustee. The escrow trust agreement maywhich there has been Covenant Defeasance, at the Corporation’s election, grant the Corporation the right to substitute U.S. Government Obligations from time to time for any or all of the U.S. Government Obligations deposited on deposit with the Trustee pursuant will be sufficient to this Section and the escrow trust agreement; provided, that the condition specified in clause (1) above is satisfied immediately following any pay amounts due on such substitution or substitutions. If any Securities of a series are to be redeemed prior to their stated maturity pursuant to optional redemption provisions the applicable escrow trust agreement shall provide therefor and the Corporation shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, time of the Corporation. The Corporation’s exercise Stated Maturity but may not be sufficient to pay amounts due on such Securities at the time of its option under this Section shall not preclude the Corporation acceleration resulting from subsequently exercising its option under Section 8.02 hereof and the Corporation may so exercise that option by providing the Trustee with written notice to such effectEvent of Default.
Appears in 1 contract
Samples: Indenture (Xl Capital LTD)
