Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied: (a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be; (b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound; (c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit; (d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and (e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.
Appears in 5 contracts
Samples: Senior Indenture (Credit Suisse First Boston Usa Inc), Indenture (Amerada Hess Corp), Senior Indenture (Credit Suisse First Boston Usa Inc)
Defeasance. Except as provided below, the The Company will shall be deemed to have paid and will be been discharged from any and its obligations with respect to all obligations in respect of the Securities outstanding Debentures on the date of any series the deposit referred to in subparagraph (A) hereof, and the provisions of this Indenture will Indenture, as it relates to such outstanding Debentures, shall no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall shall, upon the request of the Company, execute proper instruments supplied to it by the Company acknowledging the same), except as to:
(i) the rights of Holders of Debentures to receive, solely from the trust funds described in subparagraph (A) hereof, payments of the principal of or interest on the outstanding Debentures on the date such payments are due; and
(ii) the rights, powers, trust and immunities of the Trustee hereunder; provided that the following conditions shall have been satisfied:
(aA) the Company has shall have deposited, or caused to be deposited, irrevocably deposited in trust with the Trustee Trustee, under the terms of an escrow trust agreement satisfactory to the Trustee, as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated solely for to the benefit of the Holders of the Securities of such seriesDebentures, for cash in U.S. dollars and/or Eligible Instruments (including U.S. Government Obligations) which through the payment of interest and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the Principal due date of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal principal of and accrued interest on all the outstanding Securities Debentures on the dates such payments of such series to maturity principal or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beinterest are due and payable;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(cB) no Default or Event of Default with respect to the Securities of such series Debentures shall have occurred and be continuing on the date of such deposit;
(dC) such deposit and the related intended consequences will not result in a breach or violation of, or constitute a default or event of default under, the Indenture or any other material indenture, agreement or other instrument binding upon the Company or its subsidiaries or any of their properties or assets;
(D) the Company shall have delivered to the Trustee (i) either (x) a ruling directed an Officers' Certificate and an Opinion of Counsel to the Trustee effect that (1) the Company has received from from, or there has been published by, the Internal Revenue Service a ruling (which ruling shall be satisfactory to the Trustee), or (2) since the date of execution of this First Supplemental Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 such deposit, defeasance and discharge 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 deposit, defeasance and defeasance discharge had not occurred or occurred;
(yE) an Opinion of Counsel the Company shall have delivered to the same effect as the ruling described in clause (x) above and (ii) Trustee an Opinion of Counsel to the effect Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Securities Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company;
(F) such series have a valid security interest deposit shall not result in the trust funds subject to no prior liens arising from such deposit constituting an "investment company" (as defined in the Investment Company Act of 1940, as amended (the "Investment Company Act")), or such trust shall be qualified under the UCCsuch Act or exempt from regulation thereunder; and
(eG) the Company has shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series 2.12 have been complied with. The Company's obligations Notwithstanding a defeasance of the Debentures, the Company shall continue to have the right to cause a Remarketing of the Debentures so long as the amounts described above are expected to be on deposit in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities escrow trust account as of such series shall survive until such Securities are no longer outstanding. Thereafteradjusted date of maturity (i.e., only 180 days following the Company's obligations in Sections 7.07 and 8.05 shall surviveRemarketing Date).
Appears in 5 contracts
Samples: First Supplemental Indenture (New York Community Bancorp Inc), First Supplemental Indenture (New York Community Bancorp Inc), First Supplemental Indenture (New York Community Capital Trust I)
Defeasance. Except as provided belowProvided that the same has been duly authorized with respect to Securities of a particular series pursuant to Section 3.01(11), if, at any time after the date hereof, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect shall deposit with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders thereof, (i) funds sufficient to pay, or (ii) U.S. Government Obligations (as defined below) as will, or will together with the income thereon without consideration of any reinvestment thereof, be sufficient to pay all sums due for the Securities principal of such series(and premium, for payment of the Principal of if any) and interest interest, if any, on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyas they shall become due from time to time, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of shall pay all federalcosts, state and local taxes or other charges and assessments in respect thereof payable expenses incurred or to be incurred by the TrusteeTrustee in relation thereto or in carrying out the provisions of this Indenture, this Indenture shall cease to pay and discharge the Principal be of and accrued interest on the outstanding further effect with respect to Securities of such series (except as to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to i) the Trustee)Company's obligations, as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to Securities of such series under Sections 3.05, 3.06 and 11.02, (ii) rights of Holders to receive payments of the principal of (and premium, if any) and interest, if any, on the Securities of such series as they shall become due from time to time and other rights, duties and obligations of Holders as beneficiaries hereof with respect to the amounts so deposited with the Trustee, (iii) rights of conversion of any Security, the terms of which provide for conversion (which shall continue in full force and effect pursuant to the terms set forth in Article Sixteen to the extent provided for in such terms), and (iv) the rights, obligations and immunities of the Trustee hereunder (for which purposes the Securities of such series shall have occurred be deemed outstanding)), and be continuing the Trustee, on the date written request of such deposit;
(d) the Company, accompanied by the Officer's Certificate and Opinion of Counsel required by Section 1.02, shall execute and deliver to the Company such instruments as shall have delivered be requisite to evidence the Trustee (i) either (x) a ruling directed satisfaction thereof with respect to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveseries.
Appears in 5 contracts
Samples: Indenture (Centennial Puerto Rico Operations Corp), Senior Subordinated Indenture (Century Communications Corp), Indenture (Centennial Puerto Rico Operations Corp)
Defeasance. Except as provided belowProvided that the same has been duly authorized with respect to Securities of a particular series pursuant to Section 2.03(1), if, at any time after the date hereof, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect shall deposit with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders holders thereof, (i) funds sufficient to pay, or (ii) such amount of direct noncallable obligations of, or noncallable obligations the payment of principal of and interest on which is fully guaranteed by, the United States of America, or to the payment of which obligations or guarantees the full faith and credit of the Securities United States of such seriesAmerica is pledged, as will, or will together with the income thereon without consideration of any reinvestment thereof, be sufficient to pay all sums due for payment of the Principal of principal of, premium, if any, and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyas they shall become due from time to time, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of shall pay all federalcosts, state and local taxes or other charges and assessments in respect thereof payable expenses incurred or to be incurred by the TrusteeTrustee in relation thereto or in carrying out the provisions of this Indenture, this Indenture shall cease to pay and discharge the Principal be of and accrued interest on the outstanding further effect with respect to Securities of such series (except as to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory i) rights of registration of transfer, substitution and exchange of Securities of such series, (ii) rights of holders to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation receive payments of, or constitute a default underprincipal of, this Indenture or any premium, if any, and interest on the Securities of such series as they shall become due from time to time and other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default rights, duties and obligations of Securityholders as beneficiaries hereof with respect to the amounts so deposited with the Trustee, and (iii) the rights, obligations and immunities of the Trustee hereunder (for which purposes the Securities of such series shall have occurred be deemed outstanding)), and be continuing the Trustee, on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result written request of the Company's exercise of its option under this Section 8.02 and will be subject to federal income tax on , accompanied by 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel required by Section 15.06, in each case stating that all conditions precedent provided for herein relating shall execute and deliver to the defeasance contemplated by this Section 8.02 of Company such instruments as shall be requisite to evidence the satisfaction thereof with respect to Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveseries.
Appears in 4 contracts
Samples: Indenture (Kansas City Power & Light Co), Indenture (Consolidated Edison Inc), Indenture (Kansas City Power & Light Co)
Defeasance. Except If and when the Bonds secured hereby shall become due and payable in accordance with their terms or through redemption proceedings as provided belowin this Agreement, or otherwise, and the whole amount of the principal, or Redemption Price and the interest so due and payable upon all of the Bonds shall be paid, or provision shall have been made for the payment of the same, together with all other sums payable under this Agreement by the Company will on behalf of the Authority, including all fees and expenses of the Trustee and the Authority, then and in that case, this Agreement and the lien created hereby shall be deemed discharged and satisfied and the Authority shall be released from the covenants, agreements and obligations contained in this Agreement, and the Trustee shall assign and transfer to or upon the order of the Company all property (in excess of the amounts required for the foregoing) then held by the Trustee free and clear of any encumbrances and shall execute such documents as may be reasonably required by the Authority and the Company in this regard. Subject to the provisions of the above paragraph, when any of the Bonds shall have been paid and if, at the time of such payment, all the covenants and promises in such Bonds and in this Agreement required or contemplated to be kept, performed and observed by the Authority (or by the Company on behalf of the Authority) or on its part on or prior to that time, then this Agreement shall be considered to have paid and will be been discharged from any and all obligations in respect of such Bonds and such Bonds shall cease to be entitled to the Securities lien of this Agreement and such lien and all covenants, agreements and other obligations hereunder shall cease, terminate, become void and be completely discharged as to such Bonds. Notwithstanding the satisfaction and discharge of this Agreement or the discharge of this Agreement in respect of any series and the Bonds, those provisions of this Indenture will no longer be Agreement relating to the maturity of the Bonds, interest payments and dates thereof, tender and exchange provisions, exchange and transfer of Bonds, replacement of mutilated, destroyed, lost or stolen Bonds, the safekeeping and cancellation of Bonds, nonpresentment of Bonds and the duties of the Trustee in connection with all of the foregoing, and compliance with the covenants contained in Section 8.07, shall remain in effect with respect to and shall be binding upon the Securities of such series (Authority, the Trustee and the Trustee, at the expense holders of the Company, Bonds and the Trustee shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited continue to be obligated to hold in trust with any moneys or investments then held by the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal principal of, Redemption Price of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the TrusteeBonds, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as Bondholders the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or funds so held by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of as and when such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivepayment becomes due.
Appears in 4 contracts
Samples: Loan and Trust Agreement (Tampa Electric Co), Loan and Trust Agreement (Tampa Electric Co), Loan and Trust Agreement (Tampa Electric Co)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the CompanyCompany and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such seriesSecurities, for payment of the Principal of and of, interest (including Additional Interest, if any) on the Securities of such seriesSecurities, and any other sum due hereunder, money sufficient or U.S. Government Obligations Obligations, which through the payment of principal and interest thereon will be sufficient, or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest (including Additional Interest, if any) on the outstanding Securities of such series Securities, and to pay any other sums due by it hereunder to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option such discharge under this Section 8.02 9.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCabove; and
(e) the Company has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.02 of the Securities of such series have been complied with. The Company's obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 7.078.07, 7.08 8.08 and 8.05 9.03, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such the Securities are no longer outstanding. Thereafter, only the Company's obligations of the Company and the Guarantor in Sections 7.07 8.07 and 8.05 9.03, as applicable, shall survive.
Appears in 4 contracts
Samples: Indenture (Credit Suisse Group Funding (Guernsey) LTD), Indenture (Credit Suisse Group Funding (Guernsey) LTD), Indenture (Credit Suisse Group Funding (Guernsey) LTD)
Defeasance. Except as provided below, the Company will be deemed to have paid paid, and the Company and the Guarantor will be discharged from any and all obligations in respect of of, the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the CompanyCompany and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and of, interest on and any Additional Amounts payable in respect of the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued of, interest on and any Additional Amounts payable in respect of the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default Default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option such discharge under this Section 8.02 9.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCabove; and
(e) the Company has delivered to the Trustee an Officers' Officer's Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.02 of the Securities of such series have been complied with. The Company's obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 7.078.07, 7.08 8.08, 9.04 and 8.05 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive. The defeasance of obligations in Sections 7.07 respect of Securities of any series by the Company and 8.05 the Guarantor under this Section 9.02 shall survivebe effective notwithstanding any prior covenant defeasance in respect of Securities of such series by the Company or the Guarantor under Section 9.03.
Appears in 4 contracts
Samples: Indenture (Glaxosmithkline PLC), Indenture (Glaxosmithkline Capital Inc), Indenture (Glaxosmithkline PLC)
Defeasance. Except as provided belowUpon the Company’s exercise of the option specified in Section 4.3 applicable to this Section with respect to the Securities of a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Securities and any coupons appertaining thereto (except as specified below) on the date the conditions set forth in Section 4.6 are satisfied (hereinafter “defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid and will discharged the entire indebtedness represented by such Securities and any coupons appertaining thereto which shall thereafter be discharged from any and all obligations in respect deemed to be “Outstanding” only for the purposes of the Securities of any series Section 4.7 and the provisions other Sections of this Indenture will no longer be referred to in effect with respect clause (ii) of this Section, and to the have satisfied all its other obligations under such Securities of and any coupons appertaining thereto and this Indenture insofar as such series Securities and any coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, shall on Company Order execute proper instruments acknowledging the same); provided that , except the following conditions which shall have been satisfied:
survive until otherwise terminated or discharged hereunder: (ai) the Company has irrevocably deposited in trust with rights of Holders of such Securities and any coupons appertaining thereto to receive, solely from the Trustee as trust funds solely for the benefit described in Section 4.6(a) and as more fully set forth in such Section and in Section 4.7, payments in respect of the Holders principal of premium, if any, and interest, if any, on such Securities and any coupons appertaining thereto when such payments are due; (ii) the Company’s obligations with respect to such Securities of such seriesunder Sections 3.4, for payment of the Principal of 3.5, 3.6, 9.2 and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment 9.3 and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the payment of Additional Amounts, if any, payable with respect to such Securities of such series shall have occurred and be continuing on the date of such deposit;
as specified pursuant to Section 3.1(b)(18); (diii) the Company shall have delivered to rights, powers, trusts, duties and immunities of the Trustee hereunder and (iiv) either (x) a ruling directed this Article 4. Subject to compliance with this Article 4, the Trustee received from Company may exercise its option under this Section notwithstanding the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's prior exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 4.5 with respect to the such Securities and any coupons appertaining thereto. Following a defeasance, payment of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivemay not be accelerated because of an Event of Default.
Appears in 4 contracts
Samples: Indenture (Cadiz Inc), Subordinated Indenture (Cadiz Inc), Indenture (Cadiz Inc)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the CompanyCompany and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such seriesSecurities, for payment of the Principal of and of, interest (including Additional Interest, if any) on the Securities of such seriesSecurities, and any other sum due hereunder, money sufficient or U.S. Government Obligations Obligations, which through the payment of principal and interest thereon will be sufficient, or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest (including Additional Interest, if any) on the outstanding Securities of such series Securities, and to pay any other sums due by it hereunder to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option such discharge under this Section 8.02 9.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to above, which opinion must be based either on a change in applicable U.S. federal income tax laws or regulations occurring after the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCdate hereof; and
(e) the Company has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.02 of the Securities of such series have been complied with. The Company's obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 7.078.07, 7.08 8.08 and 8.05 9.03, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such the Securities are no longer outstanding. Thereafter, only the Company's obligations of the Company and the Guarantor in Sections 7.07 8.07 and 8.05 9.03, as applicable, shall survive.
Appears in 4 contracts
Samples: Indenture (Credit Suisse Group Funding (Guernsey) LTD), Indenture (Credit Suisse Group Funding (Guernsey) LTD), Indenture (Credit Suisse Group Funding (Guernsey) LTD)
Defeasance. Except as provided belowAt the Issuers' option, either (a) the Company will Issuers shall be deemed to have paid and will be discharged been Discharged (as defined below) from any and all their respective obligations in respect of under the Securities of on the 91st day after the applicable conditions set forth below have been satisfied or (b) the Issuers shall cease to be under any series obligation to comply with any term, provision or condition set forth in Sections 3.9 through 3.18, 8.1 and the provisions of this Indenture will no longer be in effect 8.2 with respect to the Securities of such series (and at any time after the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following applicable conditions shall set forth below have been satisfied:
: (a1) the Company has Issuers shall have deposited or caused to be deposited irrevocably deposited in trust with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely for to, the benefit of the Holders of the Securities (i) funds in an amount sufficient to pay (A) the principal amount of the Securities in full on the date of maturity of the Securities or a selected date of redemption of the Securities as permitted under this Indenture (if such seriesSecurities are to be called for redemption and satisfactory arrangements have been made with the Trustee for the giving of notice of redemption) and (B) the interest on such aggregate principal amount to the date of maturity of the Securities or such date of redemption, taking into account all intervening interest payment dates, for payment of the Principal of and period from the date through which interest on the Securities has been paid to the date of maturity of the Securities or such date of redemption and all other sums payable hereunder by the Issuers; provided that such funds, if invested, shall be invested only in U.S. Government obligations maturing prior to the date of maturity of the Securities or, to the extent applicable, such date of redemption and such intervening interest payment dates; and, provided further, however, that the Trustee shall have no obligation to invest such funds; or (ii) U.S. Government obligations in such aggregate principal amount and maturity on such dates as will, together with the income or increment to accrue thereon, but without consideration of any reinvestment of such seriesincome or increment, money be sufficient to pay when due (including any intervening interest payment dates) the amounts set forth in the foregoing clauses (A) and (B); or U.S. Government Obligations or (iii) a combination thereof of (i) and (ii) sufficient (unless such funds consist solely in the cases of moneydeposits made pursuant to (ii) or (iii)), in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal each installment of principal of, and accrued interest on on, the outstanding Securities on the dates such installments of such series to maturity principal or earlier redemption interest are due; (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c2) 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;
; (d3) the Company Issuers shall have delivered to the Trustee (iA) either (x) a ruling directed to the Trustee received from the Internal Revenue Service an Opinion of Counsel to the effect that the deposit of such funds or investments or both to defease the Issuers' obligations in respect of the Securities is in accordance with the provisions of this Indenture and (B) either (i) an Opinion of Counsel to the effect that Holders of the Securities of such series will not recognize income, gain or loss for United States federal income tax purposes as a result of the Company's exercise of its the option under this Section 8.02 9.5 and will be subject to United States federal income tax on the same amount and in the same manner and at the same times time as would have been the case if such deposit and defeasance option had not occurred been exercised, or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel a private letter ruling to the that effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered directed to the Trustee an Officers' Certificate received from the United States Internal Revenue Service; and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to (4) the defeasance contemplated by this Section 8.02 of the Securities deposit of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series funds or investments shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivenot contravene applicable law.
Appears in 3 contracts
Samples: Indenture (Advantica Restaurant Group Inc), Indenture (Dennys Holdings Inc), Indenture (Dennys Holdings Inc)
Defeasance. Except as provided below(a) The Company may, at its option by Board Resolution, at any time, with respect to the Debt Securities of any series, elect to have either Section 8.01(b) or Section 8.01(c) be applied to the outstanding Debt Securities of any series upon compliance with the conditions set forth in Section 8.01(d).
(b) Upon the Company's exercise under Section 8.01(a) of the option applicable to this Section 8.01(b), the Company will shall be deemed to have been released and discharged from its obligations with respect to the outstanding Debt Securities of any series on the date the conditions set forth below in Section 8.01(d) are satisfied (hereinafter, "Defeasance"). For this purpose, such Defeasance means that the Company shall be deemed to have paid and will be discharged from any and all obligations in respect of the entire indebtedness represented by the outstanding Debt Securities of any series such series, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.05 and the provisions other Sections of and matters under this Indenture will no longer be referred to in effect with respect (i) and (ii) below, and to have satisfied all its other obligations under the Debt Securities of such series and this Indenture insofar as the Debt Securities of such series are concerned (and the Trustee, at the expense of the Company, shall promptly execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of Debt Securities of such series to receive solely from the trust fund described in Section 8.01(d) below and as more fully set forth in Section 8.01(d), payments in respect of the principal of and interest on the Debt Securities of such series when such payments are due, (ii) the Company's obligations under Sections 2.06, 2.07, 2.15, 2.16 and 2.18, 4.02, 4.03, 7.07 and this Section 8.01 (for purposes of applying Section 4.03, if the Trustee is required by law to withhold or deduct any amount for or on account of Argentine withholding taxes from payment made from any trust fund described in Section 8.02(d)(1) under or with respect to the Debt Securities of such series, such payment shall be made by the Company and the Company shall be deemed to have been so required to withhold or deduct), (iii) obligations listed in Section 8.03, and (iv) the Company's right of redemption pursuant to Section 3.01; provided that the following change or amendment referred to therein occurs after the Defeasance is exercised by the Company in accordance with this Section 8.01, in which case the Company may redeem the Debt Securities of such series in accordance with Section 3.01 by complying with Article 3 and depositing with the Trustee in accordance with Section 3.05, an amount of money sufficient, together with all amounts held in trust pursuant to Section 8.01(d)
(1) to pay the Redemption Price of all the Debt Securities of such series to be redeemed. Subject to compliance with this Section 8.01, the Company may exercise its option under this Section 9.01(b) notwithstanding the prior exercise of its option under Section 9.01(c) below with respect to the Debt Securities of such series.
(c) Upon the Company's exercise under Section 8.01(a) of the option applicable to this Section 8.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article 5 and in Sections 4.04 through 4.20 with respect to the outstanding Debt Securities of such series on and after the date the conditions set forth below in Section 8.01(d) are satisfied (hereinafter, "Covenant Defeasance"), and the Debt Securities of such series shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders of Debt Securities of such series (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder. For this purpose, Covenant Defeasance means that, with respect to the outstanding Debt Securities of such series, the Company may omit to comply with and shall have been satisfiedno liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01(c) in respect of the Debt Securities of such series, nor shall any event referred to in Section 6.01(d) or Section 6.01(e) thereafter constitute a Default or an Event of Default in respect of the Debt Securities of such series but, except as specified above, the remainder of this Indenture and the Debt Securities of such series shall be unaffected thereby.
(d) The following shall be the conditions to application of either Section 8.01(b) or Section 8.01(c) to the outstanding Debt Securities of any series:
(a1) the The Company has shall have irrevocably deposited in trust with the Trustee as Trustee, pursuant to an irrevocable trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, security agreement in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered form and substance satisfactory to the Trustee, United States Legal Tender or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of America for the payment of which obligation or guarantee the full faith and credit of the United States of America is pledged ("United States Government Obligations") maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of any the reinvestment of such interest and after payment by the Company to the appropriate governmental authority of all Argentine federal and local taxes and United States federal, state and local taxes taxes, if any, or other charges and or assessments in respect thereof payable by the Trustee, in the opinion of the chief financial officer of the Company expressed in a written certification thereof (in form and substance reasonably satisfactory to the Trustee) delivered to the Trustee, to pay the principal of, premium, if any, and discharge the Principal of and accrued interest on the outstanding Debt Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to on the Trustee), as dates on which any such payments are due and payable in accordance with the case may beterms of this Indenture and of the Debt Securities;
(b2) such deposits shall not cause the Trustee to have a conflicting interest as defined in and for purposes of the TIA;
(3) no Default or Event of Default in respect of the Debt Securities of such series (i) shall have occurred or be continuing on the date of such deposit or (ii) shall occur on or before the 91st calendar day after the date of such deposit;
(4) the Company is not an "insolvent person" within the meaning of Argentine Bankruptcy Law on the date of such deposit or at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be satisfied until the expiration of such period);
(5) such deposit will not result in a Default under this Indenture or a breach or violation of, or constitute a default under, this Indenture or any other material instrument or agreement or instrument to which the Company is a party or by which it or its property is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d6) the Company shall have delivered deliver to the Trustee (i) either (x) a ruling directed an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee received from the Internal Revenue Service Trustee, to the effect that the Holders of the Debt Securities of such series will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit and the Company's exercise of its option under this Section 8.02 defeasance contemplated hereby and will be subject to United States federal income tax on in the same amount amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred occurred;
(7) the deposit shall not result in the Company, the Trustee or the trust becoming or being deemed to be an "investment company" under the Investment Company Act;
(y) an Opinion of Counsel 8) the Company shall deliver to the same effect as the ruling described in clause (x) above and (ii) Trustee an Opinion of Counsel to the effect that the Holders of the Debt Securities of such series shall have a valid perfected security interest under applicable law in United States Legal Tender or United States Government Obligations deposited pursuant to clause (1) above;
(9) the Company shall have delivered to the Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, to the effect that, after the passage of 90 days following the deposit, the trust funds will not be subject to no prior liens any claims of the Company or the creditors, or any receiver, liquidator, trustee in bankruptcy or other Person exercising similar rights or powers under the UCCany applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(e10) the Company has delivered to the Trustee an Officers' a Company Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for specified herein relating to the defeasance Defeasance or Covenant Defeasance, as applicable, contemplated by this Section 8.02 8.01 have been complied with; provided that no deposit under clause (1) above with respect to a defeasance pursuant to Section 8.01(b) shall be effective to terminate the obligations of the Company under the Debt Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 or this Indenture with respect to the Debt Securities of such series shall survive until prior to 90 days following any such deposit.
(e) In the event all or any portion of the Debt Securities of any series are no longer outstanding. Thereafterto be redeemed through such irrevocable trust, only the Company must make arrangements satisfactory to the Trustee, at the time of such deposit, for the giving of the notice of such redemption or redemptions by the Trustee in the name and at the expense of the Company's obligations in . In connection with the issuance of Debt Securities the proceeds of which will be used to redeem all the Debt Securities of such series then outstanding, none of Sections 7.07 and 8.05 4.04, 4.06 or 4.09 shall survivebe violated by the issuance of the Debt Securities of such series to the extent the Company complies with all of the provisions of this Section 8.01(d) other than Section 9.01(d)(2).
Appears in 3 contracts
Samples: Indenture (Autopistas Del Sol Sa), Indenture (Autopistas Del Sol Sa), Indenture (Autopistas Del Sol Sa)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the CompanyCompany and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option such discharge under this Section 8.02 9.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCabove; and
(e) the Company has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.02 of the Securities of such series have been complied with. The Company's obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 7.078.07, 7.08 8.08, 9.04 and 8.05 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations of the Company and the Guarantor in Sections 7.07 8.07 and 8.05 9.05, as applicable, shall survive.
Appears in 3 contracts
Samples: Subordinated Indenture (Credit Suisse Group), Subordinated Indenture (Credit Suisse Group), Senior Guaranteed Indenture (Credit Suisse Group)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided PROVIDED that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option such discharge under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCabove; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 7.08, 8.04 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.
Appears in 2 contracts
Samples: Subordinated Indenture (Credit Suisse Group), Senior Indenture (Credit Suisse Group)
Defeasance. Except as provided belowFor purposes of Section 8.1, the Company will Issuer shall be deemed to have paid the Principal of and will be discharged from any and all obligations in respect of the interest on Securities of any series outstanding hereunder as and when the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions same shall have been satisfied:
(a) become due and payable, if the Company has Issuer shall have irrevocably deposited or caused to be deposited in trust with the Trustee as trust funds solely in cash and/or U.S. Government Obligations sufficient without reinvestment thereof to provide for the benefit of the Holders of the Securities of such series, for timely payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity Stated Maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)redemption, as the case may be;
, not theretofore delivered to the Trustee for cancellation; provided, however, that (bi) such deposit will not result in order to have money available on a breach payment date to pay Principal or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to interest on the Securities of such series series, the U.S. Government Obligations shall have occurred be payable as to principal and be continuing interest on or before such payment date in such amounts as will provide the date of such deposit;
necessary money; and (dii) the Company Issuer shall have delivered to the Trustee obtain an Opinion of Counsel (i) either (x) which may be based on a ruling directed to the Trustee received from from, or published by, the Internal Revenue Service Service) to the effect that the Holders of the Securities of such that series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 such deposit, defeasance and discharge and will be subject to federal income tax on the same amount amounts and in the same manner and at the same times times, as would have been the case if such deposit deposit, defeasance and defeasance discharge had not occurred or (y) an Opinion of Counsel to occurred; and provided, further, however, that notwithstanding the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counselforegoing, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to any series of Securities which shall at the Securities time be listed for trading on The New York Stock Exchange, there shall be no deposit of funds in cash and/or in U.S. Government Obligations with the Trustee to pay the Principal amount, the redemption price or any installment of interest in order to discharge the Issuer's obligation in respect of any such series shall survive until payment if at such Securities are no longer outstanding. Thereafter, only time the Company's obligations in Sections 7.07 and 8.05 shall surviverules of The New York Stock Exchange prohibit such deposit with the Trustee.
Appears in 2 contracts
Samples: Senior Indenture (Mesa Inc), Subordinated Indenture (Mesa Inc)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the CompanyCompany and the Guarantor, shall execute proper instruments acknowledging the same); provided PROVIDED that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option such discharge under this Section 8.02 9.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCabove; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.02 of the Securities of such series have been complied with. The Company's obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 7.078.07, 7.08 8.08, 9.04 and 8.05 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations of the Company and the Guarantor in Sections 7.07 8.07 and 8.05 9.05, as applicable, shall survive.
Appears in 2 contracts
Samples: Senior Guaranteed Indenture (Credit Suisse Group), Subordinated Indenture (Credit Suisse Group)
Defeasance. Except as provided below, the Company Issuer will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture and the Cable Guarantees will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the CompanyIssuer, shall execute proper instruments in form and substance satisfactory to the Issuer and the Trustee acknowledging the same); provided that the following conditions shall have been satisfied:
(ai) the Company Issuer has irrevocably deposited in trust with the Trustee as trust funds specifically pledged as security for, and dedicated solely for the benefit of the to, Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federalFederal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture Indenture, the Cable Guarantees or any other material agreement or instrument to which the Company Issuer is a party or by which it is bound;
(ciii) no default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(div) the Company Issuer shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal Federal income tax purposes as a result of the Company's Issuer’s exercise of its option under this Section 8.02 9.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change in law and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(ev) the Company Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.02 of the Securities of such series have been complied with. The Company's Issuer’s obligations in Sections 2.02 2.03 through 2.122.11, 4.023.02, 7.075.06, 7.08 5.09 and 8.05 9.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's Issuer’s obligations in Sections 7.07 5.06 and 8.05 9.05 shall survive.
Appears in 2 contracts
Samples: Indenture (Comcast Cable Communications LLC), Indenture (Comcast Cable Communications Inc)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money When principal or U.S. Government Obligations or a combination thereof sufficient redemption price (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;) of, and interest on, any Bonds issued hereunder has been paid, or provision shall have been made for payment of the same, together with the compensation of the Trustee and all other sums payable hereunder by the Corporation and the County, the right, title and interest of the Trustee with respect to such Bonds shall thereupon cease and the Trustee shall release this Trust Agreement and shall execute such documents to evidence such releases as may be reasonably required by the Corporation and shall turn over to the Corporation or to such person, body or authority as may be entitled to receive the same all balances then held by it hereunder; provided, however, that the County shall in all events remain liable under the Facilities Agreement (subject to Section 4.7 thereof) until all amounts due and owing thereunder have been paid or provision shall have been made for payment of the same.
(b) Provision for the payment of the Bonds shall be deemed to have been made when the Trustee holds, in an irrevocable deposit, under the provisions hereof (i) cash in an amount sufficient to make all payments specified above with respect to all of such Bonds, or (ii) Defeasance Obligations maturing on or before the date or dates when the payments specified above shall become due, the principal amount of which and the interest thereon, when due, is or will be, in the aggregate, sufficient without reinvestment to make all payments specified above with respect to such Bonds, or (iii) any combination of such cash and such Defeasance Obligations the amounts of which and interest thereon, when due, are or will be, in the aggregate, sufficient without reinvestment to make all payments specified above on such Bonds; provided that, to the extent such deposit will does not result in consist of uninvested cash, the Trustee shall have received a breach report of an independent accountant or violation of, or constitute a default under, this Indenture or firm of accountants selected by the Corporation verifying that the computations of the amount available from Defeasance Obligations when added to any other material agreement or instrument cash available shall be sufficient to which meet the Company is a party or by which it is bound;requirements hereof.
(c) no Default Neither the obligations nor the moneys deposited with respect the Trustee pursuant to this Section 9.1 shall be withdrawn or used for any purpose other than, and shall be segregated and held in trust for, the Securities payment of such series shall have occurred the principal or redemption price of, and be continuing on the date of such deposit;interest on, said Bonds.
(d) Whenever moneys or obligations shall be deposited with the Company shall have delivered Trustee for the payment or redemption of Bonds more than 60 days prior to the Trustee (i) either (x) a ruling directed date that such Bonds are to mature or be redeemed, the Trustee received from shall mail a notice stating that such moneys or obligations have been deposited and identifying the Internal Revenue Service Bonds for the payment of which such moneys or obligations are being held, to the effect that the Holders of Bonds for the Securities payment of which such series will not recognize income, gain moneys or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; andobligations are being held.
(e) the Company has Prior to any defeasance becoming effective under this Trust Agreement, there shall have been delivered to the Trustee an Officers' Certificate and an Opinion opinion of Bond Counsel, in each case stating that all conditions precedent provided for herein relating satisfactory to the Trustee, to the effect that interest on the Bonds being paid by such defeasance contemplated will not become subject to federal income taxation by this Section 8.02 of the Securities reason of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivedefeasance.
Appears in 2 contracts
Samples: Trust Agreement, Trust Agreement
Defeasance. Except as provided below, or as otherwise specified in an indenture supplemental hereto with regard to any series of Convertible Securities, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Convertible Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Convertible Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the CompanyCompany and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Convertible Securities of such series, for payment of the Principal of and interest on the Convertible Securities of such series, money sufficient or U.S. Government Obligations Obligations, which through the payment of principal and interest thereon will be sufficient, or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Convertible Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is boundbound or be in contravention of Articles 11 and 12 hereof or any indenture supplemental hereto contemplated by such Articles or any term or provision of any agreement creating or evidencing indebtedness ranking senior to the indebtedness evidenced hereby;
(c) no Default Default, Event of Default, any other default or any Covenant Enforcement Event with respect to the Convertible Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Convertible Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Company's exercise of its option such discharge under this Section 8.02 9.02 and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCabove; and
(e) the Company has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.02 of the Convertible Securities of such series have been complied with. The Company's obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 7.078.07, 7.08 8.08, 9.04 and 8.05 9.05, as applicable, with respect to the Convertible Securities of such series and the Guarantee thereof shall survive until such Convertible Securities are no longer outstanding. Thereafter, only the Company's obligations of the Company and the Guarantor in Sections 7.07 8.07, 9.04 and 8.05 9.05, as applicable, shall survive.
Appears in 2 contracts
Samples: Indenture (Credit Suisse Group (Guernsey) III LTD), Indenture (Credit Suisse Group (Guernsey) III LTD)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably irrevocable provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the United States Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 8.2 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 or occurred, (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change in law, or (iiz) an instrument, in form reasonably satisfactory to the Trustee, wherein the Company, notwithstanding the payment and discharge, pursuant to this Section 8.2, of its indebtedness in respect of Securities of any series, or any portion of the principal amount thereof, shall assume the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee such additional sums of money, if any, or additional U.S. Government Obligations (meeting the requirements of this Article 8), if any, or any combination thereof, at such time or times, as shall be necessary, together with the money and/or U.S. Government Obligations theretofore so deposited, to pay when due the Principal of and premium, if any, and interest due and to become due on such Securities or portions thereof; provided, however, that such instrument may state that the obligation of the Company to make additional deposits as aforesaid shall be subject to the delivery to the Company by the Trustee of a notice asserting the deficiency accompanied by an opinion of an independent public accountant of nationally recognized standing, selected by the Trustee, showing the calculation thereof, and (2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 8.2 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 2.2 through 2.12, 4.024.2, 7.077.7, 7.08 7.8 and 8.05 8.5 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 7.7 and 8.05 8.5 shall survive.
Appears in 2 contracts
Samples: Indenture (Arrow Electronics Inc), Indenture (Arrow Electronics Inc)
Defeasance. Except as provided below, Notwithstanding anything to the Company will be deemed to have paid and will be discharged from any and all obligations contrary in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect and unless otherwise specified with respect to any Series in the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfiedapplicable Indenture Supplement:
(a) The Issuer may at its option be discharged from its obligations hereunder with respect to any Series or all outstanding Series (each, a "Defeased Series") on the Company has irrevocably deposited date the applicable conditions set forth in trust Section 11.04(c) are satisfied (a "Defeasance"); provided, however, that the following rights, obligations, powers, duties and immunities shall survive with respect to each Defeased Series until otherwise terminated or discharged hereunder: (i) the Trustee as trust funds solely for the benefit rights of the Holders of the Securities of such series, for payment Notes of the Principal Defeased Series to receive, solely from the trust fund provided for in Section 11.04(c), payments in respect of principal of and interest on such Notes when such payments are due; (ii) the Securities Issuer's obligations with respect to such Notes under Sections 2.05 and 2.06; (iii) the rights, powers, trusts, duties, and immunities of the Indenture Trustee, the Paying Agent and the Registrar hereunder; and (iv) this Section and Section 12.16.
(b) Subject to Section 11.04(c), the Issuer at its option may cause Collections allocated to each Defeased Series and available to purchase additional Receivables to be applied to purchase Eligible Investments rather than additional Receivables.
(c) The following shall be the conditions precedent to any Defeasance under Section 11.04(a):
(i) the Issuer irrevocably shall have deposited or caused to be deposited with the Indenture Trustee (such seriesdeposit to be made from other than the Issuer's or any Affiliate of the Issuer's funds), money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely under the terms of money, an irrevocable trust agreement in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered form and substance satisfactory to the Indenture Trustee, as trust funds in trust for making the payments described below, (A) without consideration of any reinvestment and after Dollars in an amount equal to, or (B) Eligible Investments which through the scheduled payment of all federal, state principal and local taxes or other charges and assessments interest in respect thereof payable by will provide, not later than the Trusteedue date of payment thereon, money in an amount equal to, or (C) a combination thereof, in each case sufficient to pay and discharge (without relying on income or gain from reinvestment of such amount), and which shall be applied by the Principal Indenture Trustee to pay and discharge, all remaining scheduled interest and principal payments on all outstanding Notes of and accrued interest each Defeased Series on the outstanding Securities of dates scheduled for such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory payments in this Indenture and the applicable Indenture Supplements and all amounts owing to the Trustee), as the case may beSeries Enhancers with respect to each Defeased Series;
(bii) a statement from a firm of nationally recognized independent public accountants (who may also render other services to the Issuer) to the effect that such deposit will not result is sufficient to pay the amounts specified in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is boundclause (i) above;
(ciii) no Default prior to its exercise of its right pursuant to this Section with respect to any Defeased Series to substitute money or Eligible Investments for Receivables, the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company Issuer shall have delivered to the Indenture Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in contemplated by clause (x) above and (ii) of the definition of the term "Tax Opinion" (the preparation and delivery of which shall not be at the expense of the Indenture Trustee) with respect to such deposit and termination of obligations, and an Opinion of Counsel to the effect that such deposit and termination of obligations will not result in the Holders Trust being required to register as an investment company under the Investment Company Act;
(iv) the Issuer shall have delivered to the Indenture Trustee an Officer's Certificate of the Securities Transferor stating that the Transferor reasonably believes that such deposit and termination of obligations will not, based on the facts known to such officer at the time of such series have certification, then cause a valid security interest Pay Out Event with respect to any Series or any event that, with the giving of notice or the lapse of time, would result in the trust funds subject occurrence of a Pay Out Event with respect to no prior liens under the UCCany Series; and
(ev) the Company has Rating Agency Condition shall have been satisfied and the Issuer shall have delivered copies of such written notice to the Trustee an Officers' Certificate Servicer and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied withIndenture Trustee. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.ARTICLE TWELVE
Appears in 2 contracts
Samples: Master Indenture (Nordstrom Credit Inc), Master Indenture (Bon Ton Stores Inc)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption, as the case may be; provided that any redemption (before maturity shall be irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.
Appears in 2 contracts
Samples: Senior Indenture (Delta Air Lines Inc /De/), Subordinated Indenture (Delta Air Lines Inc /De/)
Defeasance. Except as provided belowWhen the principal of, and premium (if any) and interest on, all Bonds issued hereunder have been paid, or provision has been made for payment of the same and any Purchase Price which may become payable pursuant to Article V, together with the compensation and expenses of the Trustee and all other sums payable hereunder by the Authority or the Company, the Company will be deemed to have paid right, title and will be discharged from any and all obligations in respect interest of the Securities of any series Trustee in and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (Trust Estate shall thereupon cease and the Trustee, at on demand of the expense of Authority or the Company, shall release this Indenture and shall execute proper instruments acknowledging such documents to evidence such release as may be reasonably required by the same)Authority or the Company and shall turn over to the Company or to such person, body or authority as may be entitled to receive the same all balances then held by it hereunder not required for the payment of the Bonds and such other sums and shall surrender the Letter of Credit to the Bank; provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit any proceeds of the Holders Letter of the Securities of such series, Credit not required for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered Bonds shall be turned over to the Trustee) without consideration of any reinvestment Bank and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will in the event there has been a drawing under the Letter of Credit for which the Bank has not result in a breach or violation of, or constitute a default under, this Indenture been fully reimbursed pursuant to the Letter of Credit Agreement or any other material agreement obligations are then due and owing to the Bank under the Letter of Credit Agreement, the Trustee shall assign and turn over to the Bank, as successor, subrogee or instrument otherwise, all of the Trustee’s right, title and interest under this Indenture, all balances held hereunder (excluding the Rebate Fund) not required for the payment of the Bonds and such other sums and the Trustee’s right, title and interest in, to which and under the Company Loan Agreement and any other property comprising the Trust Estate. If payment or provision therefor is a party or by which it is bound;
(c) no Default made with respect to less than all of the Securities of such series Bonds, the particular Bonds (or portions thereof) for which provision for payment shall have occurred and been considered made shall be continuing on the date of selected by lot or by such deposit;
(d) the Company shall have delivered to other method as the Trustee (i) either (x) a ruling directed to deems fair and appropriate, and thereupon the Trustee received from shall take similar action for the Internal Revenue Service to the effect that the Holders release of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 Indenture with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveBonds.
Appears in 2 contracts
Samples: Loan Agreement (Gateway Trade Center Inc.), Loan Agreement (Gateway Trade Center Inc.)
Defeasance. Except as provided below, Provided that the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect same has been duly authorized with respect to the Securities of such a particular series (and pursuant to Section 3.01(11), if, at any time after the date hereof, the Issuer shall deposit with the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders thereof, (i) funds sufficient to pay, or (ii) U.S. Government Obligations (as defined below) as will, or will together with the income thereon without consideration of any reinvestment thereof, be sufficient to pay all sums due for the Securities principal of such series(and premium, for payment of the Principal of if any) and interest interest, if any, on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyas they shall become due from time to time, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of shall pay all federalcosts, state and local taxes or other charges and assessments in respect thereof payable expenses incurred or to be incurred by the TrusteeTrustee in relation thereto or in carrying out the provisions of this Indenture, this Indenture shall cease to pay and discharge the Principal be of and accrued interest on the outstanding further effect with respect to Securities of such series (except as to maturity (i) the Issuer's or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)a Guarantor's obligations, as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to Securities of such series under Sections 3.05, 3.06 and 11.02, (ii) rights of Holders to receive payments of the principal of (and premium, if any) and interest, if any, on the Securities of such series as they shall become due from time to time and other rights, duties and obligations of Holders as beneficiaries hereof with respect to the amounts so deposited with the Trustee, and (iii) the rights, obligations and immunities of the Trustee hereunder (for which purposes the Securities of such series shall have occurred be deemed outstanding)), and be continuing the Trustee, on the date written request of such deposit;
(d) the Company Issuer or a Guarantor, accompanied by the Officer's Certificate and Opinion of Counsel required by Section 1.02, shall have delivered execute and deliver to the Trustee (i) either (x) Issuer or a ruling directed Guarantor such instruments as shall be requisite to evidence the Trustee received from the Internal Revenue Service satisfaction thereof with respect to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveseries.
Appears in 2 contracts
Samples: Indenture (Centennial Puerto Rico Operations Corp), Indenture (Centennial Puerto Rico Operations Corp)
Defeasance. Except as provided below, the The Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and series, the provisions of this Indenture will will, except as provided below, no longer be in effect with respect to the Securities of such series (and series, the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that same and the Securities of any such series will no longer be outstanding pursuant to Section 2.08, on the 91st day after the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal principal of and any interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof in an amount sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and principal of, any accrued interest on on, and any mandatory sinking fund payments in respect of the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (xA) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 such deposit 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 been made or (yB) an Opinion of Counsel to the same effect as the ruling described in clause (xA) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the Uniform Commercial Code or successor law, as then in effect in each applicable jurisdiction (the "UCC");
(e) such deposit would not cause any Securities of such series then listed on the New York Stock Exchange or other national securities exchange to be delisted as a result thereof; and
(ef) the Company has shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.122.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 2.11, 2.13, 4.02, 4.03, 7.07, 7.08 7.08, and 8.05 8.04 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 4.03 and 7.07 and 8.05 shall survive.
Appears in 2 contracts
Samples: Indenture (Becton Dickinson & Co), Indenture (Becton Dickinson & Co)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(aA) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bB) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(cC) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dD) the Company shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 8.2 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(eE) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 8.2 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 2.2 through 2.12, 4.024.1, 7.074.2, 7.08 7.7, 7.8 and 8.05 8.5 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 7.7 and 8.05 8.5 shall survive.
Appears in 2 contracts
Samples: Senior Debt Indenture (Donaldson Lufkin & Jenrette Inc /Ny/), Subordinated Debt Indenture (Donaldson Lufkin & Jenrette Inc /Ny/)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money When principal or U.S. Government Obligations or a combination thereof sufficient redemption price (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;) of, and interest on, any Obligations issued hereunder has been paid, or provision shall have been made for payment of the same, together with the compensation of the Trustee and all other sums payable hereunder by the Corporation and the County, the right, title and interest of the Trustee with respect to such Obligations shall thereupon cease and the Trustee shall release this Trust Agreement and shall execute such documents to evidence such releases as may be reasonably required by the Corporation and shall turn over to the Corporation or to such person, body or authority as may be entitled to receive the same all balances then held by it hereunder; provided, however, that the County shall in all events remain liable under the Facilities Agreement (subject to Section 4.7 thereof) until all amounts due and owing thereunder have been paid or provision shall have been made for payment of the same.
(b) Provision for the payment of the Obligations shall be deemed to have been made when the Trustee holds, in an irrevocable deposit, under the provisions hereof (i) cash in an amount sufficient to make all payments specified above with respect to all of such Obligations, or (ii) Defeasance Obligations maturing on or before the date or dates when the payments specified above shall become due, the principal amount of which and the interest thereon, when due, is or will be, in the aggregate, sufficient without reinvestment to make all payments specified above with respect to such Obligations, or (iii) any combination of such cash and such Defeasance Obligations the amounts of which and interest thereon, when due, are or will be, in the aggregate, sufficient without reinvestment to make all payments specified above on such Obligations; provided that, to the extent such deposit will does not result in consist of uninvested cash, the Trustee shall have received a breach report of an independent accountant or violation of, or constitute a default under, this Indenture or firm of accountants selected by the Corporation verifying that the computations of the amount available from Defeasance Obligations when added to any other material agreement or instrument cash available shall be sufficient to which meet the Company is a party or by which it is bound;requirements hereof.
(c) no Default Neither the obligations nor the moneys deposited with respect the Trustee pursuant to this Section 9.1 shall be withdrawn or used for any purpose other than, and shall be segregated and held in trust for, the Securities payment of such series shall have occurred the principal or redemption price of, and be continuing on the date of such deposit;interest on, said Obligations.
(d) Whenever moneys or obligations shall be deposited with the Company shall have delivered Trustee for the payment or redemption of Obligations more than 60 days prior to the Trustee (i) either (x) a ruling directed date that such Obligations are to mature or be redeemed, the Trustee received from shall mail a notice stating that such moneys or obligations have been deposited and identifying the Internal Revenue Service Series 2020 Notes for the payment of which such moneys or obligations are being held, to the effect that the Holders of Obligations for the Securities payment of which such series will not recognize income, gain moneys or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; andobligations are being held.
(e) the Company has Prior to any defeasance becoming effective under this Trust Agreement, there shall have been delivered to the Trustee an Officers' Certificate and an Opinion opinion of Bond Counsel, in each case stating that all conditions precedent provided for herein relating satisfactory to the Trustee, to the effect that interest on the Obligations being paid by such defeasance contemplated will not become subject to Federal income taxation by this Section 8.02 of the Securities reason of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivedefeasance.
Appears in 2 contracts
Samples: Trust Agreement, Trust Agreement
Defeasance. Except as provided below, the Company Issuer will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the CompanyIssuer, shall execute proper instruments in form and substance satisfactory to the Issuer and the Trustee acknowledging the same); provided that the following conditions shall have been satisfied:
(ai) the Company Issuer has irrevocably deposited in trust with the Trustee as trust funds specifically pledged as security for, and dedicated solely for the benefit of the to, Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Issuer is a party or by which it is bound;
(ciii) no default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(div) the Company Issuer shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the CompanyIssuer's exercise of its option under this Section 8.02 9.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change in law and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(ev) the Company Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.02 of the Securities of such series have been complied with. The CompanyIssuer's obligations in Sections 2.02 2.03 through 2.122.11, 4.023.02, 7.075.06, 7.08 5.09 and 8.05 9.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the CompanyIssuer's obligations in Sections 7.07 5.06 and 8.05 9.05 shall survive.
Appears in 2 contracts
Defeasance. Except as provided belowIf the District shall pay or cause to be paid, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:or there shall
(a) by paying or causing to be paid the Company has irrevocably deposited in trust principal of, premium, if any, and interest on such Loan or Parity Loan, as and when the same become due and payable;
(b) by depositing with the Trustee as trust funds solely Authority Trustee, in trust, at or before maturity, money which, together with the amounts then on deposit in the Repayment Fund and available for such purpose, is fully sufficient to pay the benefit of the Holders of the Securities of such series, for payment of the Principal principal of and interest on such Loan or Parity Loan, as and when the Securities of such seriessame shall become due and payable; or
(c) by depositing with the Authority Trustee or another escrow bank appointed by the District, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of in trust, Federal Securities, in which the District may lawfully invest its money, in such amount as will be sufficient, together with the opinion of a nationally recognized firm of independent public accountants expressed interest to accrue thereon and moneys then on deposit in a written certification thereof delivered the Repayment Fund and available for such purpose, together with the interest to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trusteeaccrue thereon, to pay and discharge the Principal principal of and accrued interest on such Loan or Parity Loan, as and when the same shall become due and payable; then, at the election of the District, and notwithstanding that the Loan and any Parity Loan shall not have been surrendered for payment, all obligations of the District under this Agreement and any Supplemental Agreement with respect to such Loan or Parity Loan shall cease and terminate, except for the obligation of the Authority Trustee to pay or cause to be paid the Loan and any Parity Loan not so surrendered and paid, all sums due thereon from the amounts described above and except for the covenants of the District contained in Section 5.2(f) or any covenants in a Supplemental Agreement relating to compliance with the Code. Notice of such election shall be filed with the Authority Trustee not less than ten days prior to the proposed defeasance date, or such shorter period of time as may be acceptable to the Authority Trustee. In connection with a defeasance under (c) above, there shall be provided to the District and the Authority Trustee, a verification report from an Independent Accountant, stating its opinion as to the sufficiency of the moneys or securities deposited with the Authority Trustee or the escrow bank to pay and discharge the principal of and interest on the outstanding Securities of such series Loan and any Parity Loans to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)be defeased in accordance with this Section, as and when the case may be;
(b) such deposit will not result same shall become due and payable. The Loan and any Parity Loans shall be deemed unpaid under this Agreement unless and until they are in fact paid and retired or the above criteria are met. Upon a breach or violation ofdefeasance, or constitute a default underthe Authority Trustee, this Indenture or any other material agreement or instrument to which upon request of the Company is a party or by which it is bound;
(c) no Default District, shall release its rights and the rights of the Owners hereunder with respect to the Securities Loan and Parity Loans which have been defeased under this Agreement and any Supplemental Agreement and execute and deliver to the District all such instruments as may be desirable to evidence such release, discharge and satisfaction. In the case of such series a defeasance hereunder of all Loan and Parity Loans, the Authority Trustee shall have occurred pay over or deliver to the District any funds held by the Authority Trustee hereunder at the time of a defeasance, which are not required for the purpose of paying and be continuing discharging the principal of or interest on the date Loan and Parity Loans when due. The Authority Trustee shall, at the written direction of such deposit;
(d) the Company shall have delivered District, send a notice to the Trustee (i) either (x) a ruling directed to Bondowners, in the Trustee received from manner set forth in the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 and will be subject to federal income tax on the same amount Authority Indenture and in the same manner and at form directed by the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect District, stating that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company defeasance has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveoccurred.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement
Defeasance. Except as provided belowIf there is paid or caused to be paid from the Bond Fund to the Holders of all of the Bonds secured hereby the principal of, premium, if any, and interest which is and shall thereafter become due and payable thereon, together with all other sums payable hereunder by the Authority, then and in that case the rights, title and interest of the Trustee hereunder shall cease and terminate, and such Bonds shall cease to be entitled to any lien, benefit or security under this Agreement. In such event, subject to the rights of the Letter of Credit Issuer under the Security Agreements and the Reimbursement Agreement, the Company will Trustee shall transfer and assign to the Borrower or the Letter of Credit Issuer, as directed by the Letter of Credit Issuer, all property then held by the Trustee, shall deliver the Letter of Credit to the Letter of Credit Issuer, shall execute such documents as may be reasonably required by the Authority or the Borrower to evidence such transfer and assignment and shall turn over to the Borrower or the Letter of Credit Issuer, as directed by the Letter of Credit Issuer, any surplus in the Bond Fund and the Debt Service Reserve Fund and any balance remaining in the Construction Fund. If the Authority shall pay or cause to be paid to the Holders of less than all of the outstanding Bonds the principal of, premium, if any, and interest which is and shall thereafter become due and payable upon such Bonds, such Bonds, or portions thereof, shall cease to be entitled to any lien, benefit or security under this Agreement. ---Any outstanding Bond, or any portion thereof in the principal amount of FIVE THOUSAND DOLLARS ($5,000) or any multiple thereof, shall be deemed to have been paid within the meaning and will be discharged from any and all obligations with the effect expressed in respect this Section 1301 when the whole amount of the Securities of any series principal of, premium, if any, and interest on such Bond shall have been paid or when: (a) in case said Bonds or portions thereof have been selected for redemption in accordance with Section 301 hereof prior to their maturity, the Borrower shall have given to the Trustee irrevocable instructions to give in accordance with the provisions of this Indenture will no longer be in effect with respect to the Securities Section 302 hereof notice of redemption of such series Bonds, or portions thereof; (and the Trustee, at the expense of the Company, b) there shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust be on deposit with the Trustee as trust funds solely for Eligible Moneys or Defeasance Obligations which shall not contain provisions permitting the benefit redemption thereof other than at the option of the Holders holder, the principal of and the Securities of such seriesinterest on which when due, for payment of and without any reinvestment thereof, will provide Eligible Moneys which shall be sufficient to pay when due the Principal principal of and interest due and to become due on the Securities of such series, money said Bonds or U.S. Government Obligations portions thereof on or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered prior to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes redemption date or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)date thereof, as the case may be;
; (c) in the event said Bonds, or portions thereof, do not mature and are not to be redeemed within the next succeeding sixty (60) days, the Borrower shall have given the Trustee irrevocable instructions to give notice, as soon as practicable in the same manner as a notice of redemption is given pursuant to Section 302 hereof, to the Holders of said Bonds, or portions thereof, stating that the deposit of Eligible Moneys or Defeasance Obligations required by clause (b) of this paragraph has been made with the trustee and that said Bonds are deemed to have been paid in accordance with this Section and stating such deposit will not result in a breach maturity or violation ofredemption date upon which moneys are to be available for the payment of the principal of and interest. on said Bonds, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
portions thereof; (d) the Company Trustee shall have delivered received an opinion of counsel experienced in bankruptcy matters, satisfactory to the Trustee (i) either (x) a ruling directed to Trustee, the Trustee received from Letter of Credit Issuer and the Internal Revenue Service Authority, to the effect that the Holders payment to the Bondholders of the Securities moneys described in clause (b) of such series will this paragraph would not recognize income, gain or loss for federal income tax purposes constitute a transfer which may be avoided as a result preference under any provision of the Company's exercise of its option under this Section 8.02 and will be subject to federal income tax on the same amount and United States Bankruptcy Code in the same manner and at event of an Act of Bankruptcy; (e) the same times as would Trustee shall have been the case if such deposit and defeasance had not occurred or (y) received an Opinion of Counsel experienced in federal tax matters satisfactory to the same effect as Trustee and the ruling described in clause (x) above and (ii) an Opinion of Counsel Authority, to the effect that the Holders deposit of the Securities moneys or Defeasance Obligations described in clause (b) of such series have a valid security this paragraph would not adversely affect the treatment of the interest received by Bondholders as income from sources within the Commonwealth for purposes of the Code or otherwise would not result in an Event of Taxability (assuming continuing compliance by the Borrower with the source of income covenants set forth in the trust funds subject to no prior liens Loan Agreement) and; (f) all outstanding obligations under the UCC; and
(e) Reimbursement Agreement shall have been paid in full. Neither the Company has delivered moneys nor the Defeasance Obligations deposited with the Trustee pursuant to this Section nor principal or interest payments on any such obligations shall be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the principal of and interest on said Bonds, or portions thereof. If the Defeasance Obligations deposited with the Trustee pursuant to this Section are purchased with proceeds of refunding bonds issued by the Authority, such Defeasance Obligations must meet the requirements of the Act. If payment of less than all of the Bonds is to be provided for in the manner and with the effect expressed in this Section, the Trustee shall select such Bonds, or portions thereof, in the manner specified in Section 301 hereof for selection for redemption of less than all of the Bonds in the principal amounts designated to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to by the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveBorrower.
Appears in 2 contracts
Samples: Trust Agreement (Maxxam Inc), Trust Agreement (Maxxam Inc)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(ai) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(ciii) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(div) the Company shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change in law and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC;
(v) if the Securities of such series are then listed on a national securities exchange, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the defeasance contemplated by this Section 8.02 of the Securities of such series will not cause the Securities of such series to be delisted; and
(evi) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.
Appears in 2 contracts
Samples: Indenture (Sothebys Holdings Inc), Indenture (Sothebys Holdings Inc)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(aA) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bB) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(cC) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dD) the Company shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(eE) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.122.12 , 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.
Appears in 2 contracts
Samples: Subordinated Indenture (Donaldson Lufkin & Jenrette Inc /Ny/), Subordinated Indenture (Credit Suisse First Boston Usa Inc)
Defeasance. Except as provided below, the Company Issuer will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the CompanyIssuer, shall execute proper instruments in form and substance satisfactory to the Issuer and the Trustee acknowledging the same); provided that the following conditions shall have been satisfied:
(ai) the Company Issuer has irrevocably deposited in trust with the Trustee as trust funds specifically pledged as security for, and dedicated solely for the benefit of the to, Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Issuer is a party or by which it is bound;
(ciii) no default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(div) the Company Issuer shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from or a ruling published by the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's Issuer’s exercise of its option under this Section 8.02 9.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have based upon a valid security interest change in the trust funds subject to no prior liens under the UCClaw; and
(ev) the Company Issuer has delivered to the Trustee an Officers' Officer’s Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.02 of the Securities of such series have been complied with. The Company's Issuer’s obligations in Sections 2.02 2.03 through 2.122.11, 4.023.02, 7.075.06, 7.08 5.09 and 8.05 9.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's Issuer’s obligations in Sections 7.07 5.06 and 8.05 9.05 shall survive.
Appears in 1 contract
Samples: Indenture (Planetout Inc)
Defeasance. Except The indenture will permit us to terminate all our respective obligations under the indenture as provided belowthey relate to any particular series of debt securities, other than the Company will be deemed obligation to have paid pay interest, if any, on and will be discharged from any and all obligations in respect the principal of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities debt securities of such series (and the Trusteecertain other obligations, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited any time by: ∎ depositing in trust with the Trustee as trustee, under an irrevocable trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such seriesagreement, money or U.S. Government Obligations or a combination thereof government obligations in an amount sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal principal of and accrued interest interest, if any, on the outstanding Securities debt securities of such series to their maturity or earlier redemption (irrevocably provided for under arrangements satisfactory redemption; and ∎ complying with other conditions, including delivery to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities trustee of such series shall have occurred and be continuing on the date an opinion of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service counsel to the effect that the Holders of the Securities of such series holders will not recognize income, gain or loss for federal income tax purposes as a result of the Company's our exercise of its option under this Section 8.02 such right 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 otherwise. The indenture will also permit us to terminate all of our respective obligations under the indenture as they relate to any particular series of debt securities, including the obligations to pay interest, if any, on and the principal of the debt securities of such deposit series and defeasance had not occurred certain other obligations, at any time by: ∎ depositing in trust with the trustee, under an irrevocable trust agreement, money or (y) government obligations in an Opinion amount sufficient to pay principal and interest, if any, on the debt securities of Counsel such series to their maturity or redemption; and ∎ complying with other conditions, including delivery to the same effect as the ruling described in clause (x) above and (ii) trustee of an Opinion opinion of Counsel counsel to the effect that (A) we have received from, or there has been published by, the Holders Internal Revenue Service a ruling, or (B) since the date such series of debt securities were originally issued, there has been a change in the Securities applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall state that, holders will not recognize income, gain or loss for federal income tax purposes as a result of our exercise of such right 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 otherwise. In addition, the indenture will permit us to terminate substantially all our respective obligations under the indenture as they relate to a particular series of debt securities by depositing with the trustee money or government obligations sufficient to pay all principal and interest on such series at its maturity or redemption date if the debt securities of such series have will become due and payable at maturity within one year or are to be called for redemption within one year of the deposit. A holder will be able to transfer or exchange debt securities only in accordance with the indenture. The registrar may require a valid holder, among other things, to furnish appropriate endorsements and transfer documents, and to pay any taxes and fees required by law or permitted by the indenture. The indenture will contain limitations on the rights of the trustee, should it become our creditor, to obtain payment of claims in specified cases or to realize on property received in respect of any such claim as security interest or otherwise. The indenture will permit the trustee to engage in other transactions; however, if it acquires any conflicting interest, it must eliminate such conflict or resign. The indenture will provide that in case an event of default occurs and is not cured, the trustee will be required, in the trust funds subject exercise of its power, to use the degree of care of a prudent person in similar circumstances in the conduct of such person’s own affairs. The trustee shall be under no prior liens under obligation to exercise any of the UCC; and
(e) rights or powers vested in it by the Company has delivered indenture at the request or direction of any of the holders pursuant to the Trustee an Officers' Certificate and an Opinion of Counselindenture, in each case stating that all conditions precedent provided for herein relating unless such holders shall have offered to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect trustee security or indemnity satisfactory to the Securities of trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviverequest or direction.
Appears in 1 contract
Samples: Open Market Sale Agreement
Defeasance. Except as provided below, the The Company will shall be deemed to have paid fully paid, satisfied and will be discharged from any and all obligations in respect of the Securities outstanding Debentures or all the outstanding Debentures of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (or issue and the Trustee, at the expense of the Company, shall execute and deliver proper instruments acknowledging the same); provided that full payment, satisfaction and discharge of such Debentures, when, with respect to all outstanding Debentures or all the following conditions shall have been satisfiedoutstanding Debentures of any series or issue issued hereunder, as the case may be, either:
(a) the Company has irrevocably deposited in trust or caused to be deposited with the Trustee as trust funds solely in trust for the benefit of the Holders of the Securities of such seriespurpose, for payment of the Principal of and interest on the Securities of such seriesan amount sufficient to pay, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay satisfy and discharge the Principal entire amount of principal, premium (if any) and accrued and unpaid interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)maturity date or any repayment date, as the case may be;, of all the outstanding Debentures or all the outstanding Debentures of such series or issue; or
(b) the Company has deposited or caused to be deposited with the Trustee as trust property in trust for the purpose, such deposit will not result in a breach or violation amount of direct obligations of, or constitute a default underobligations the principal, this Indenture premium (if any) and interest of which are guaranteed by, the Government of Canada or of the United States of America as will, together with the income to accrue thereon without consideration of any reinvestment thereof, be sufficient to pay and discharge the entire amount of principal, premium (if any) and accrued and unpaid interest to the maturity date or any other material agreement repayment date, as the case may be, of all the outstanding Debentures or instrument to which all the Company is a party outstanding Debentures of such series or by which it is bound;issue; and in either event:
(c) no Default the Company has paid or caused to be paid all other sums payable with respect to all the Securities outstanding Debentures or all the outstanding Debentures of such series shall have occurred and be continuing on the date of such depositor issue;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent herein provided for herein relating to the defeasance contemplated by this Section 8.02 payment, satisfaction and discharge of all the Securities outstanding Debentures or all the outstanding Debentures of such series or issue have been complied with. The Company's obligations ; and
(e) except in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 respect of taxes arising with respect to deposited funds or other provision for payment in respect of the Securities Debentures or Debentures of such series or issue as hereinbefore provided, for the payment of which the Company has deposited funds with the Trustee as trust funds in trust for such purpose, the Trustee shall survive until have received an opinion of national recognized counsel to the effect that the holders of Debentures or such Securities are series or issue of Debentures will not be subject to any additional taxes as a result of the exercise by the Company of the defeasance option provided in this Section 7.05 and that they will be subject to taxes, if any, including those in respect of income (including taxable capital gain), on the same amount, in the same manner and at the same time or times as would have been the case if such option had not been exercised. Any deposits with the Trustee referred to in this Section shall be irrevocable and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee, acting reasonably, and which provides for the due and punctual payment of the principal, premium, if any, and accrued and unpaid interest of all the outstanding Debentures or all the outstanding Debentures of such series. Upon the satisfaction of the conditions set forth in this Section with respect to all the outstanding Debentures or all the outstanding Debentures of such series or issue, the terms and conditions of all the outstanding Debentures or all the outstanding Debentures of such series or issue, including the terms and conditions with respect thereto set forth in this Trust Indenture, shall no longer outstanding. Thereafter, only be binding upon or applicable to the Company's . Any funds or obligations deposited with the Trustee pursuant to this Section shall be denominated in Sections 7.07 the currency in which the Debentures so deemed to be fully paid, satisfied and 8.05 shall survivedischarged are denominated.
Appears in 1 contract
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee as trust funds solely for Principal Funding Account, an amount such that the benefit amount on deposit in the Principal Funding Account following such deposit is equal to the Class A Outstanding Principal Amount, (y) in the Principal Account, an amount equal to the sum of the Holders of Class B Outstanding Principal Balance and Excess Collateral Outstanding Principal Balance and (z) in the Securities of such seriesAccumulation Period Reserve Account, for payment of an amount equal to or greater than the Principal of accrued and unpaid interest on the Investor Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in through the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to day preceding the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest date on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
Defeasance occurs; (c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iii) a Ratings Event will not occur, the Series 2001-3 Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust assets (a "Defeasance") and 8.05 with respect the percentages applicable to the Securities allocation to the Series 2001-3 Securityholders of such series Principal Collections, Finance Charge Collections and Defaulted Receivables will be reduced to zero.
SECTION 7. Article V of the Agreement. Article V of the Agreement shall survive until such Securities are no longer outstanding. Thereafter, read in its entirety as follows and shall be applicable only to the Company's obligations in Sections 7.07 and 8.05 shall survive.Series 2001-3 Securities:
Appears in 1 contract
Samples: Supplement (Metris Master Trust)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided PROVIDED that the following conditions shall have been satisfied:
(ai) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(ciii) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(div) the Company shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 8.2 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change in law and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(ev) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 8.2 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 2.2 through 2.12, 4.024.2, 7.077.7, 7.08 7.8 and 8.05 8.5 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 7.7 and 8.05 8.5 shall survive.
Appears in 1 contract
Samples: Indenture (Promus Hotel Corp)
Defeasance. Except as If so provided below, in the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfiedapplicable Supplement:
(a) The Transferor may at its option be discharged from its obligations hereunder with respect to any Series or all outstanding Series (the Company has irrevocably deposited “Defeased Series”) on the date the applicable conditions set forth in trust Section 12.04(c) are satisfied (“Defeasance”); provided, however, that the following rights, obligations, powers, duties and immunities shall survive with respect to the Trustee as trust funds solely for Defeased Series until otherwise terminated or discharged hereunder: (i) the benefit rights of Holders of Investor Certificates of the Holders Defeased Series to receive, solely from the trust fund provided for in Section 12.04(c), payments in respect of the Securities of such series, for payment of the Principal principal of and interest on such Investor Certificates when such payments. are due; (ii) the Securities Transferor’s obligations with respect to such Certificates under Sections 6.04 and 6.05; (iii) the rights, powers, trusts, duties and immunities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, the Paying Agent and the Transfer Agent and Registrar hereunder; and (iv) this Section 12.04.
(b) Subject to pay Section 12.04(c), the Transferor at its option may cause Collections allocated to the Defeased Series and discharge available to acquire additional Receivables to be applied to acquire Eligible Investments rather than additional Receivables.
(c) The following shall be the Principal conditions to Defeasance under Section 12.04(a): (i) the Transferor irrevocably shall have deposited or caused to be deposited with the Trustee, under the terms of an irrevocable trust agreement in form and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements substance satisfactory to the Trustee), as trust funds in trust for making the case may be;
payments described below, (bA) such deposit will not result Dollars in a breach or violation ofan amount, or constitute a default under(B) Eligible Investments which through the scheduled payment of principal and interest in respect thereof will provide, this Indenture or any other material agreement or instrument to which not later than the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the due date of such deposit;
payment thereon, money in an amount, or (d) the Company shall have delivered to the Trustee (i) either (xC) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counselcombination thereof, in each case stating that all conditions precedent provided for herein relating sufficient to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12pay and discharge, 4.02and, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.which
Appears in 1 contract
Samples: Pooling and Servicing Agreement
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee Principal Funding Account, an amount such that the amount on deposit in the Principal Funding Account following such deposit is equal to the sum of the Class A Outstanding Principal Amount and the Class B Outstanding Principal Amount, and (y) in the Accumulation Period Reserve Account, an amount equal to or greater than the Covered Amount, as trust funds solely estimated by the Transferor, for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on period from the date of such deposit;
deposit to the Principal Funding Account through the Scheduled Final Payment Date; (dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iv) a Ratings Event will not occur, the Series 1999-2 Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust assets and 8.05 with respect the percentages applicable to the Securities allocation to the Series 1999-2 Securityholders of such series shall survive until such Securities are no longer outstandingPrincipal Collections, Finance Charge Collections and Defaulted Receivables will be reduced to zero. ThereafterUpon the satisfaction of the foregoing conditions, only the Company's obligations in Sections 7.07 and 8.05 shall surviveClass B Invested Amount will be reduced to zero.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Metris Receivables Inc)
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee Principal Funding Account, an amount such that the amount on deposit in the Principal Funding Account following such deposit is equal to the sum of the Class A Outstanding Principal Amount and the Class B Outstanding Principal Amount, and (y) in the Accumulation Period Reserve Account, an amount equal to or greater than the Covered Amount, as trust funds solely estimated by the Transferor, for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on period from the date of such deposit;
deposit to the Principal Funding Account through the Expected Final Payment Date; (dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iv) a Ratings Event will not occur, the Series 1998-2 Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust assets and 8.05 with respect the percentages applicable to the Securities allocation to the Series 1998-2 Securityholders of such series shall survive until such Securities are no longer outstandingPrincipal Collections, Finance Charge Collections and Defaulted Receivables will be reduced to zero. ThereafterUpon the satisfaction of the foregoing conditions, only the Company's obligations in Sections 7.07 and 8.05 shall surviveClass B Invested Amount will be reduced to zero.
SECTION 7. Article V
Appears in 1 contract
Defeasance. Except as provided belowIf, at any time after the date hereof, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect shall deposit with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of Securities of a particular series (i) funds (in such currency, currencies, currency unit or units in which any Securities of such series are payable) sufficient to pay, or (ii) in the case of Securities payable in Dollars, U.S. Government Obligations (as defined below) or in the case of Securities payable in Foreign Currency, Foreign Government Securities (as defined below), as will, or will together with the income thereon without consideration of any reinvestment thereof, be sufficient to pay in the currency or currency unit in which the Securities of such seriesseries are payable, all sums due for payment of the Principal of principal of, premium, if any, and interest interest, if any, on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyas they shall become due from time to time, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of shall pay all federalcosts, state and local taxes or other charges and assessments in respect thereof payable expenses incurred or to be incurred by the TrusteeTrustee in relation thereto or in carrying out the provisions of this Indenture, this Indenture shall cease to pay and discharge the Principal be of and accrued interest on the outstanding further effect with respect to Securities of such series (except as to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to i) the Trustee)Company's obligations, as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to Securities of such series under Sections 3.05, 3.06, 5.02 and 5.07, (ii) rights of Holders to receive payments of the principal of, premium, if any, and interest, if any, on the Securities of such series as they shall become due from time to time and other rights, duties and obligations of Holders as beneficiaries hereof with respect to the amounts so deposited with the Trustee, and (iii) the rights, obligations and immunities of the Trustee hereunder (for which purposes the Securities of such series shall have occurred be deemed outstanding)), and be continuing the Trustee, on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result written request of the Company's exercise of its option under this Section 8.02 and will be subject to federal income tax on , accompanied by 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel required by Section 314(e) of the Trust Indenture Act, in each case stating that all conditions precedent provided for herein relating shall execute and deliver to the defeasance contemplated by this Section 8.02 of Company such instruments as shall be requisite to evidence the satisfaction thereof with respect to Securities of such series have been complied withseries. The Company's obligations following terms, as used in Sections 2.02 through 2.12this Article Twelve, 4.02, 7.07, 7.08 and 8.05 with respect to shall have the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.following meanings:
Appears in 1 contract
Defeasance. Except as provided below, (A) For purposes of Section 10.1 the Company will Issuer shall be deemed to have paid the principal of, premium, if any, and will be discharged from interest, if any, on any Security or Securities outstanding hereunder as and all obligations in respect of when the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions same shall have been satisfied:
(a) become due and payable, if the Company has Issuer shall have irrevocably deposited or caused to be deposited in trust with the Trustee as trust (i) funds solely for in an amount (in such currency, currencies or currency unit or units in which such outstanding Securities are payable) or (ii) in the benefit case of the Holders of the Securities of such seriesdenominated in Dollars, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyas defined below) or, in the case of Securities denominated in a Foreign Currency, Foreign Government Securities, which through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one business day before the due date of any payment of principal (including any premium) and interest, if any, under such Securities, money in an amount or (iii) a combination (i) and (ii) sufficient (in the opinion with respect to (ii) and (iii) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration to pay and discharge each installment of principal of (including any premium), and interest, if any, on, such outstanding Securities on the dates such installments of interest or principal are due, in the currency, currencies or currency unit or units, in which such Securities are payable; provided, however, that the Issuer shall not make or cause to be made the deposit provided by this Section 10.2(A) with respect to Securities denominated in a Foreign Currency unless the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that there will not occur any violation of the Investment Company Act of 1940, as amended, on the part of the Issuer, the trust funds representing such deposit or the Trustee as a result of such deposit and the related exercise of the Issuer’s option under this Section 10.2; provided further, however, that notwithstanding the foregoing, with respect to any series of Securities which shall at the time be listed for trading on The New York Stock Exchange, there shall be no deposit of funds in cash and/or in U.S. Government Obligations or Foreign Government Securities with the Trustee to pay the principal amount, the redemption price or any installment of interest in order to discharge the Company’s obligation in respect of any reinvestment and such payment if at such time the rules of The New York Stock Exchange prohibit such deposit with the Trustee if such discharge will (or may) occur more than ten (10) days in advance of the date on which such funds or payments on such U.S. Government Obligations or Foreign Government Securities become available to holders of such Securities entitled to receive such payment. Concurrently with any such deposit with the Trustee, the Company shall deliver to the Trustee an Officers’ Certificate to the effect that under the laws in effect on the date of such deposit the amount of such deposit will be sufficient, after payment of all federalFederal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal without consideration of and accrued any reinvestment of any principal of or interest on the outstanding Securities of any such series U.S. Government Obligations or Foreign Government Securities, to retire at maturity or earlier upon redemption (irrevocably provided for under arrangements satisfactory such Securities, including principal, premium, if any, and interest, if any, due or to become due to such date of maturity or redemption. Upon receipt by the Trustee)Trustee of funds, as U.S. Government Obligations and/or Foreign Government Securities, in accordance with this Section, together with any required documents, the case may be;
(b) such deposit will not result Trustee shall, upon receipt of a Company Order, acknowledge in a breach writing that the Security or violation of, Securities or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default portions thereof with respect to which such deposit was made are deemed to have been paid for all purposes of this Indenture and that the entire indebtedness of the Company in respect thereof is deemed to have been satisfied and discharged. If payment at their stated maturity of less than all of the Securities of any series, or any Tranche thereof, is to be provided for in the manner and with the effect provided in this Section, the Trustee shall select such Securities, or portions of principal amount thereof, in the manner specified in Section 12.2 for selection for redemption of less than all the Securities of a series shall have occurred and be continuing on the date of such deposit;or Tranche.
(dB) A Security of any particular series may also provide that the Company Issuer shall as a condition of effectuating this Section 10.2 have either:
(a) delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 an Officers’ Certificate 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that (1) for Federal income tax purposes, the Holders deposit of such cash and/or U.S. Government Obligations or Foreign Government Securities in trust with the Trustee and the satisfaction and discharge of this Indenture with respect to Securities of such series pursuant to this Section 10.2 will not cause the holders of Securities of such series to recognize income, gain or loss at such time, (2) for Federal income tax purposes, such holders (and future holders of Securities of such series) will be subject to tax in the same manner as if the events described in the preceding clause (1) had not occurred, and (ii) an undertaking providing that the Issuer shall indemnify the Trustee on an after-tax basis against any increase in tax liability caused by the defeasance referred to in this Section 10.2 resulting from any change in Federal, state or local tax law subsequent to the date referred to in the last sentence of paragraph (A) of this Section 10.2 to the extent necessary to retire the Securities of such series have a valid security interest as provided in the trust funds subject to no prior liens under last sentence of paragraph A of this Section 10.2; or, in the UCC; andalternative,
(eb) entered into an undertaking providing that the Company has delivered to Issuer shall indemnify the Trustee an Officers' Certificate and an Opinion the holders (and future holders) of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations on an after- tax basis against any increase in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect tax liability caused by the defeasance referred to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivethis Section 10.2.
Appears in 1 contract
Samples: Indenture (Tyme Technologies, Inc.)
Defeasance. Except as provided belowProvided that the same has been duly authorized with respect to Securities of a particular series pursuant to Section 2.03(1), if, at any time after the date hereof, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect shall deposit with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders holders thereof, (i) funds sufficient to pay, or (ii) such amount of
2.15.1 direct noncallable obligations of, or noncallable obligations the payment of principal of and interest on which is fully guaranteed by, the United States of America, or to the payment of which obligations or guarantees the full faith and credit of the Securities United States of such seriesAmerica is pledged, as will, or will together with the income thereon without consideration of any reinvestment thereof, be sufficient to pay all sums due for payment of the Principal of principal of, premium, if any, and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyas they shall become due from time to time, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of shall pay all federalcosts, state and local taxes or other charges and assessments in respect thereof payable expenses incurred or to be incurred by the TrusteeTrustee in relation thereto or in carrying out the provisions of this Indenture, this Indenture shall cease to pay and discharge the Principal be of and accrued interest on the outstanding further effect with respect to Securities of such series (except as to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory i) rights of registration of transfer, substitution and exchange of Securities of such series, (ii) rights of holders to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation receive payments of, or constitute a default underprincipal of, this Indenture or any premium, if any, and interest on the Securities of such series as they shall become due from time to time and other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default rights, duties and obligations of Securityholders as beneficiaries hereof with respect to the amounts so deposited with the Trustee, and (iii) the rights, obligations and immunities of the Trustee hereunder (for which purposes the Securities of such series shall have occurred be deemed outstanding)), and be continuing the Trustee, on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result written request of the Company's exercise of its option under this Section 8.02 and will be subject to federal income tax on , accompanied by 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel required by Section 14.06, in each case stating that all conditions precedent provided for herein relating shall execute and deliver to the defeasance contemplated by this Section 8.02 of Company such instruments as shall be requisite to evidence the satisfaction thereof with respect to Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveseries.
Appears in 1 contract
Defeasance. Except (a) When principal or Redemption Price (as provided belowthe case may be) of, and interest on, all Bonds issued hereunder have been paid, or provision has been made for payment of the same when due in the manner described in this Section 12.01, whether at maturity or upon redemption, acceleration, or otherwise, together with all other sums payable hereunder or under the Agreement, the right, title and interest of the Trustee shall thereupon cease (except with respect to moneys or securities held by the Trustee hereunder for the payment of the principal or Redemption Price (as the case may be) of, and interest on, the Bonds and other amounts) and the Trustee, on written demand of the Authority, shall release the lien of this Indenture and shall execute documents to evidence such release as may be reasonably required by the Authority, shall surrender the Notes to the Company will and shall turn over to the Company or to such person, body or authority as may be entitled to receive the same all balances then held by it hereunder.
(b) Provision for the payment of Bonds shall be deemed to have paid been made upon the delivery to the Trustee of (i) cash in an amount which, when added to any other moneys held by the Trustee and will available for such payment, would be discharged from sufficient to make all payments specified above, or (ii) Government Obligations which are non-callable prior to the stated maturity thereof and having stated maturities arranged so that the principal of and interest becoming due and payable on such Government Obligations will, under any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series circumstances (and without further investment or reinvestment of either the Trusteeprincipal amount thereof or the interest earned thereon), at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof be sufficient (unless such funds consist solely of money, in the opinion of as confirmed by a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered accountants) to the Trusteemake all such payments, or (iii) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities combination of such series cash and such Government Obligations the amounts of which and interest thereon, when due, are or will be, in the aggregate, sufficient to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to make all such payments, and in each case, the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered delivery to the Trustee of (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (ya) an Opinion opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Bond Counsel to the effect that such defeasance is permitted under this Section 12.01 and (b) an opinion of Counsel selected by the Trustee and reasonably acceptable to the Company as to such other matters as the Trustee or the Holders of at least a majority in aggregate principal amount of the Securities Outstanding Bonds may reasonably request. Neither the obligations nor moneys deposited with the Trustee pursuant to this Section shall be withdrawn or used for any purpose other than, and shall be segregated and held in trust for the payment of such series have a valid security the principal of, Redemption Price and interest in the trust funds subject to no prior liens under the UCC; andon said Bonds.
(ec) The release of the obligations of the Authority under this Section 12.01 shall not affect the obligations of the Company has delivered to make direct payments to the Authority, the Trustee an Officers' Certificate and an Opinion or any Holder of Counsel, in each case stating that all conditions precedent provided for herein relating the Bonds pursuant to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveAgreement.
Appears in 1 contract
Defeasance. Except as provided below(A) Subject to Section 10.1, the Company will Issuer shall be deemed to have paid the principal of, premium, if any, and will be discharged from interest, if any, on any Security or Securities outstanding hereunder as and all obligations in respect of when the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions same shall have been satisfied:
(a) become due and payable, if the Company has Issuer shall have irrevocably deposited or caused to be deposited in trust with the Trustee as trust (i) funds solely for in an amount (in such currency, currencies or currency unit or units in which such outstanding Securities are payable) or (ii) in the benefit case of the Holders of the Securities of such seriesdenominated in Dollars, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyas defined below) or, in the case of Securities denominated in a Foreign Currency, Foreign Government Securities, which through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one business day before the due date of any payment of principal (including any premium) and interest, if any, under such Securities, money in an amount, or (iii) a combination (i) and (ii), sufficient (in the opinion with respect to (ii) and (iii) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) to pay (without consideration investment or reinvestment of any reinvestment kind) and after payment discharge each installment of all federalprincipal of (including any premium), state and local taxes interest, if any, on, such outstanding Securities on the dates such installments of interest or other charges and assessments principal are due, in respect thereof payable by the Trusteecurrency, currencies or currency unit or units, in which such Securities are payable, or if the Securities of such series are to be called for redemption, to pay and discharge the Principal of and accrued interest redemption price on the outstanding Securities called for redemption on the applicable redemption date. Upon receipt by the Trustee of such series to maturity funds, U.S. Government Obligations and/or Foreign Government Securities, in accordance with this Section, together with any required documents, the Trustee shall, upon receipt of a Company Order, acknowledge in writing that the Security or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach Securities or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default portions thereof with respect to which such deposit was made are deemed to have been paid for all purposes of this Indenture and that the Securities entire indebtedness of such series shall the Company in respect thereof is deemed to have occurred been satisfied and be continuing on the date of such deposit;discharged.
(dB) A Security of any particular series may also provide that the Company Issuer shall as a condition of effectuating this Section 10.2 have either:
(a) delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 an Officer’s Certificate 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that (1) for Federal income tax purposes, the Holders deposit of such cash and/or U.S. Government Obligations or Foreign Government Securities in trust with the Trustee and the satisfaction and discharge of this Indenture with respect to Securities of such series pursuant to this Section 10.2 will not cause the holders of Securities of such series to recognize income, gain or loss at such time and (2) for Federal income tax purposes, such holders (and future holders of Securities of such series) will be subject to tax in the same manner as if the events described in the preceding clause (A) had not occurred, and (ii) an undertaking providing that the Issuer shall indemnify the Trustee on an after-tax basis against any increase in tax liability caused by the defeasance referred to in this Section 10.2 resulting from any change in Federal, state or local tax law subsequent to the date referred to in the last sentence of paragraph (A) of this Section 10.2 to the extent necessary to retire the Securities of such series have a valid security interest as provided in the trust funds subject to no prior liens under last sentence of clause (A) of this Section 10.2; or, in the UCC; andalternative, or
(eb) entered into an undertaking providing that the Company has delivered to Issuer shall indemnify the Trustee an Officers' Certificate and an Opinion the holders (and future holders) of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations on an after-tax basis against any increase in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect tax liability caused by the defeasance referred to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivethis Section 10.2.
Appears in 1 contract
Defeasance. Except as provided belowNotwithstanding anything to the contrary in this Indenture, the Company will be deemed to have paid and will unless otherwise specified in any Indenture Supplement:
(a) The Issuer may at its option be discharged from its obligations hereunder with respect to any Series or all outstanding Series (each, a "Defeased Series") on the date the applicable conditions set forth in Section 11.04(c) are satisfied (a "Defeasance"); provided, however, that the following rights, obligations, powers, duties and all obligations immunities will survive with respect to each Defeased Series until otherwise terminated or discharged hereunder: (i) the rights of the Holders of Notes of the Defeased Series to receive, solely from the trust funds provided for in Section 11.04(c), payments in respect of interest on and principal of such Notes when such payments are due; (ii) the Securities of any series and the provisions of this Indenture will no longer be in effect Issuer's obligations with respect to such Notes under Sections 2.05 and 2.06; (iii) the Securities rights, powers, trusts, duties, and immunities of the Indenture Trustee, the Paying Agent and the Registrar hereunder; and (iv) this Section.
(b) Subject to Section 11.04(c), the Transferor at its option may cause Collections allocated to each Defeased Series and available to purchase additional Receivables to be applied to purchase Eligible Investments rather than additional Receivables.
(c) The following conditions must be satisfied prior to any Defeasance under Section 11.04(a):
(i) the Issuer has irrevocably deposited, or has caused the Transferor to irrevocably deposit or cause to be deposited, with the Indenture Trustee (such deposit to be made from other than the Transferor's or any Affiliate of the Transferor's funds), under the terms of an irrevocable trust agreement in form and substance satisfactory to the Indenture Trustee, as trust funds in trust in an amount sufficient to pay and discharge (without relying on income or gain from reinvestment of such series (amount) all accrued and all remaining scheduled interest and principal payments on all outstanding Notes of each Defeased Series on the dates scheduled for such payments in this Indenture and the Trusteerelated Indenture Supplements and all amounts owing to the Series Enhancers with respect to each Defeased Series. The Transferor will make these amounts available in cash or Eligible Investments or a combination thereof. The Indenture Trustee will apply all such amounts to pay and discharge the amounts specified above;
(ii) the Issuer has delivered, or has caused the Transferor to deliver, a statement from a firm of nationally recognized independent public accountants (who may also render other services to the Transferor) to the effect that such deposit is sufficient to pay the amounts specified in clause (i) above;
(iii) the Issuer has delivered, or has caused the Transferor to deliver, to the Indenture Trustee an Opinion of Counsel (the preparation and delivery of which will not be at the expense of the CompanyIndenture Trustee) to the effect that (1) for federal income tax purposes, shall execute proper instruments acknowledging the same); provided that deposit and termination of obligations will not result in the following conditions shall have been satisfied:Issuer, or any portion of the Issuer, to be treated as an association, or publicly traded partnership, taxable as a corporation, and (2) the deposit and termination of obligations will not result in the Issuer being required to register as an "investment company" within the meaning of the Investment Company Act;
(aiv) the Company Issuer has irrevocably deposited in trust with delivered, or has caused the Transferor to deliver, to the Indenture Trustee as trust funds solely for the benefit an Officer's Certificate of the Holders of Issuer or the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)Transferor, as the case may be;
(b) , stating that the Issuer or the Transferor, as the case may be, reasonably believes that such deposit and termination of obligations will not result in a breach or violation ofnot, or constitute a default underbased on the facts known to such officer at the time of such certification, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default then cause an Early Amortization Event with respect to any Series or any event that, with the Securities giving of such series shall have occurred and be continuing on notice or the date lapse of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize incometime, gain or loss for federal income tax purposes as a would result of the Company's exercise of its option under this Section 8.02 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 or (y) occurrence of an Opinion of Counsel Early Amortization Event with respect to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCany Series; and
(ev) the Company Rating Agency Condition has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 satisfied with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveeach other Outstanding Series.
Appears in 1 contract
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from On any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect date prior to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that Early Amortization Period on which the following conditions shall have been satisfied:
: (ai) the Company Transferor has irrevocably deposited (x) in trust with the Trustee Principal Funding Account, an amount equal to the outstanding principal balance of the Class A Certificates, which amount will be invested in Eligible Investments and (y) in the Reserve Account an amount equal to or greater than the Covered Amount, as trust funds solely estimated by the Transferor, for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on period from the date of such deposit;
(d) the Company shall have delivered deposit to the Trustee (i) either (x) a ruling directed to Principal Funding Account through the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and Class A Expected Final Payment Date; (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company Transferor has delivered to the Trustee an Officers' Certificate opinion of counsel to the effect that such deposit and termination of obligations as described below will not result in the Trust being required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and an Opinion opinion of Counselcounsel to the effect that following such deposit none of the Trust, in each case the Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation; (iii) the Transferor has delivered to the Trustee a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit and termination of its obligations will not constitute an Early Amortization Event or any event that, with the giving of notice or the lapse of time, would constitute an Early Amortization Event or a Series 2000-__ Early Amortization Event to occur; and (iv) the Rating Agency Condition shall have been satisfied; then, the Series 2000-__ Certificates will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07other Trust assets ("Defeasance"), 7.08 and 8.05 with respect the Investor Percentages applicable to the Securities allocation to the Series 2000-__ Certificateholders of such series shall survive until such Securities are no longer outstandingCollections of Principal Receivables, Finance Charge Receivables and Defaulted Receivables will be reduced to zero. ThereafterUpon the satisfaction of the foregoing conditions, only the Company's obligations in Sections 7.07 and 8.05 shall surviveClass B Invested Amount will be reduced to zero.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Target Receivables Corp)
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee as trust funds solely for Principal Funding Account, an amount such that the benefit amount on deposit in the Principal Funding Account following such deposit is equal to the Class A Outstanding Principal Amount, (y) in the Principal Account, an amount equal to the sum of the Holders of Class B Outstanding Principal Balance and Excess Collateral Outstanding Principal Balance and (z) in the Securities of such seriesAccumulation Period Reserve Account, for payment of an amount equal to or greater than the Principal of accrued and unpaid interest on the Investor Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in through the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to day preceding the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest date on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
Defeasance occurs; (c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iii) a Ratings Event will not occur, the Series [-] Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust assets and 8.05 with respect the percentages applicable to the Securities allocation to the Series [-] Securityholders of such series shall survive until such Securities are no longer outstanding. ThereafterPrincipal Collections, only the Company's obligations in Sections 7.07 Finance Charge Collections and 8.05 shall surviveDefaulted Receivables will be reduced to zero.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Metris Master Trust)
Defeasance. Except as provided belowThe Owner Trustee may, at any time, defease the Company will interest of the Indenture Trustee in the Indenture Estate in whole, but not in part, through the deposit with the Defeasance Trustee, in accordance with the provisions of this Section 10.05, of cash and/or Government Obligations; provided, however, that such defeasance shall not be deemed to have paid and will be discharged from any and all obligations applicable in respect of the Securities Series SWA 1995 Trust N605SW-I Certificates. Such deposit shall be made pursuant to a declaration or other appropriate instrument of any series trust satisfactory in form and substance to the Defeasance Trustee and the Indenture Trustee; such deposit shall be absolute and irrevocable and the instrument of trust shall expressly provide that the Owner Trustee shall have no further title to or interest in or power to direct the use or application of the cash and/or Government Obligations so deposited or any of the proceeds arising therefrom; such instrument shall state that the trust created thereby and the cash and/or Government Obligations deposited pursuant thereto are for the sole and exclusive benefit of the Holders and shall expressly provide that the Defeasance Trustee shall apply such cash and payments of principal and/or interest on such Government Obligations to, and only to, the punctual payment of the principal and interest on the Certificates as and when such payments become due (such declaration or instrument to contain appropriate provisions for the recording of this transfers of Certificates and the names and addresses of the Holders); and the Owner Trustee shall agree to pay, as the same shall become due and payable, all fees, costs and charges of the Defeasance Trustee under such instrument of trust, including those which may become payable after the date the conditions hereinbelow specified have been met. Upon compliance with the following conditions, and provided, that no Indenture will no longer Event of Default or Indenture Default shall have occurred and be continuing on a date 91 days after the date of the deposit of Government Obligations and/or cash with the Defeasance Trustee as provided in effect Subsection A below, the Owner Trustee's obligations with respect to the Securities Certificates will be discharged and this Indenture shall terminate as provided in Section 10.01:
A. the Owner Trustee shall have deposited with the Defeasance Trustee absolutely and irrevocably (irrespective of such series (whether the conditions in Subsections B, C, D and the Trustee, at the expense E of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall this Section 10.05 have been satisfied:)
(a1) cash and/or (2) Government Obligations which through the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of principal and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by in accordance with their terms, without any reinvestment or further investment of the Trusteeprincipal of or interest earned on such Government Obligations, will absolutely and unconditionally provide in any and all circumstances not later than one day before each Payment Date an amount sufficient to pay and discharge the Principal payment of principal and accrued interest to be due and payable on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may bePayment Date;
(b) such deposit will not result in a breach B. no Indenture Event of Default or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company deposit of cash and/or Government Obligations as contemplated hereby; TRUST INDENTURE AND SECURITY AGREEMENT [N605SW] -48- 55 C. the Owner Trustee shall have delivered to the Defeasance Trustee (i) either (x) a ruling directed and to the Trustee received from Certificate Holders written confirmation by a nationally recognized firm of independent public accountants (other than the Internal Revenue Service accounting firm then serving as Shawmut Bank Connecticut, National Association's or the Owner Participant's regular auditors) selected by the Owner Trustee, the form and substance of which confirmation and the identity of such accounting firm shall be satisfactory to the effect Indenture Trustee, that the Holders Government Obligations deposited for payment of the Securities Certificates, together with any cash deposited by the Owner Trustee, are sufficient to satisfy the requirements of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.Subsection A hereof;
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Southwest Airlines Co)
Defeasance. Except as provided below[The provisions of Sections 403 and 1006 of the Indenture relating to defeasance shall apply to the Designated Securities.] [OTHER TERMS]*: -------- * A description of particular tax, the Company will be deemed to have paid and will be discharged from any and all obligations in respect accounting or other unusual features of the Securities should be set forth, or referenced to an attached and accompanying description, if necessary, to the issuer's understanding of any series and the provisions of this Indenture will no longer transaction contemplated. Such a description might appropriately be in the form in which such features will be described in the Prospectus Supplement for the offering. 3 ANNEX II Pursuant to Section 7(d) of the Underwriting Agreement, Deloitte & Touche LLP shall furnish letters to the Underwriters to the effect that: (i) They are independent certified public accountants with respect to the Securities Company and its subsidiaries within the meaning of such series (the Act and the Trusteeapplicable published rules and regulations thereunder; (ii) In their opinion, at the expense financial statements and any supplementary financial information and schedules audited by them and included or incorporated by reference in the Registration Statement or the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Company, shall execute proper instruments acknowledging Act or the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)Exchange Act, as applicable, and the case may be;
related published rules and regulations thereunder; (biii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default The unaudited selected financial information with respect to the Securities consolidated results of such series shall have occurred operations and be continuing on the date financial position of such deposit;
(d) the Company shall have delivered to for the Trustee (i) either (x) a ruling directed to five most recent fiscal years included in the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain Prospectus and included or loss for federal income tax purposes as a result incorporated by reference in Item 6 of the Company's exercise of its option under this Section 8.02 and will be subject to federal income tax Annual Report on Form 10-K for the same amount and most recent fiscal year agrees with the corresponding amounts (after restatement where applicable) in the same manner and at the same times as would have been the case if audited consolidated financial statements for five such deposit and defeasance had not occurred fiscal years which were included or (y) an Opinion of Counsel to the same effect as the ruling described incorporated by reference in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations Annual Reports on Form 10-K for such fiscal years; (iv) On the basis of limited procedures, not constituting an audit in Sections 7.07 accordance with generally accepted auditing standards, consisting of a reading of the unaudited financial statements and 8.05 shall survive.other information referred to below, a reading of the latest available interim financial statements of the Company and its subsidiaries, inspection of the minute books of the Company and its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that: (A) the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the related published rules and regulations thereunder or are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with the basis for the audited consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; (B) any other unaudited income statement data and balance sheet items included in the Prospectus do not agree with the corresponding items in the unaudited consolidated financial statements from which such data and items were derived, and any such unaudited data and items were not determined on a basis substantially consistent with the basis for the corresponding amounts in the audited consolidated financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; (C) the unaudited financial statements which were not included in the Prospectus but from which were derived any unaudited income statement data and balance sheet items included in the Prospectus and referred to in Clause (B) were not determined on a basis substantially consistent with the basis for the audited financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year;
Appears in 1 contract
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(ai) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding outstanding-Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(ciii) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(div) the Company shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's ’s exercise of its option under this Section 8.02 8.2 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change in law and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(ev) the Company has delivered to the Trustee an Officers' ’ Certificate and an Opinion opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 8.2 of the Securities of such series have been complied with. The Company's ’s obligations in Sections 2.02 2.2 through 2.12, 4.024.2, 7.077.7, 7.08 7.8 and 8.05 8.5 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's ’s obligations in Sections 7.07 7.7 and 8.05 8.5 shall survive.
Appears in 1 contract
Samples: Indenture (La Quinta Properties Inc)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect Notwithstanding anything to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfiedcontrary in this Agreement or any Supplement:
(a) The Transferor may at its option be discharged from its obligations hereunder with respect to any Series or all outstanding Series (the Company has irrevocably deposited "Defeased Series") on the date the applicable conditions set forth in trust subsection 12.4(c) are satisfied ("Defeasance"); provided, however, that the following rights, obligations, powers, duties and immunities shall survive with respect to the Trustee as trust funds solely for Defeased Series until otherwise terminated or discharged hereunder: (i) the benefit rights of Holders of Investor Certificates of the Holders Defeased Series to receive, solely from the trust fund provided for in subsection 12.4(c), payments in respect of the Securities of such series, for payment of the Principal principal of and interest on such Investor Certificates when such payments are due; (ii) the Securities Transferor's obligations with respect to such Certificates under Sections 6.4 and 6.5; (iii) the rights, powers, trusts, duties and immunities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, the Paying Agent and the Transfer Agent and Registrar hereunder; and (iv) this Section 12.4
(b) Subject to pay subsection 12.4(c), the Transferor at its option may cause Collections allocated to the Defeased Series and discharge available to purchase additional Receivables to be applied to purchase Eligible Investments rather than additional Receivables.
(c) The following shall be the Principal conditions to Defeasance under subsection 12.4(a): (i) the Transferor irrevocably shall have deposited or caused to be deposited with the Trustee, under the terms of an irrevocable trust agreement in form and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements substance satisfactory to the Trustee), as trust funds in trust for making the case may be;
payments described below, (bA) such deposit will not result dollars in a breach or violation ofan amount, or constitute (B) Eligible Investments which through the scheduled payment of principal and interest in respect thereof will provide, not later than the due date of payment thereon, money in an amount, or (C) a default undercombination thereof, in each case sufficient to pay and discharge, and, which shall be applied by the Trustee to pay and discharge, all remaining scheduled interest and principal payments on all outstanding Investor Certificates of the Defeased Series on the dates scheduled for such payments in this Indenture or any other material agreement or instrument Agreement and the applicable Supplements and all amounts owing to which the Company is a party or by which it is bound;
(c) no Default Enhancement Providers, if any, with respect to the Securities Defeased Series; (ii) prior to any exercise of such series shall have occurred and be continuing on its right pursuant to this Section 12.4 with respect to a Defeased Series to substitute money or Eligible Investments for Receivables, the date of such deposit;
(d) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed Tax Opinion with respect to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion termination of Counsel to the same effect as the ruling described in clause (x) above obligations and (ii) an Opinion of Counsel to the effect that such deposit and termination of obligations will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCInvestment Company Act; and
(eiii) the Company has Transferor shall have delivered to the Trustee and each Enhancement Provider, if any, entitled thereto pursuant to the relevant Supplement an Officers' Officer's Certificate and an Opinion of Counsel, in each case the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit and termination of obligations will not, based on the facts known to such officer at the defeasance contemplated by this Section 8.02 of the Securities time of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12certification, 4.02then cause an Early Amortization Event or any event that, 7.07with the giving of notice or the lapse of time, 7.08 and 8.05 would constitute an Early Amortization Event to occur with respect to any Series; and (iv) the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveRating Agency Condition has been satisfied.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Target Receivables Corp)
Defeasance. Except as provided belowIf, at any time after the date hereof, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect shall: (a) deposit with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the sole benefit of the Holders holders of the Debt Securities of such seriesa series pursuant to the terms of an irrevocable trust agreement in form and substance satisfactory to Counsel to the Trustee, for payment (i) funds in Canadian dollars as will, and/or (ii) direct unconditional obligations of the Principal Government of and interest on Canada denominated in Canadian dollars as will, or will together with the Securities income thereon without consideration of such seriesany reinvestment thereof, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneybe sufficient, in the opinion of a nationally recognized firm of an independent public accountants expressed in a written certification thereof delivered chartered accountant (which may include the Company's Auditors or the Guarantor's Auditors) acceptable to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay all sums due for the principal of, premium, if any, and discharge the Principal of and accrued interest interest, if any, on the outstanding Debt Securities of such series and for the payment of any taxes arising with respect to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)such deposited funds, obligations and/or other securities, as the case may be;
same shall become due from time to time; and (b) such deposit will not result pay all costs, charges and expenses incurred or to be incurred by the Trustee in a breach relation thereto or violation of, or constitute a default underin carrying out the provisions of this Indenture, this Indenture or any shall cease to be of further effect with respect to such Debt Securities (except as to (A) rights of registration of transfer, substitution and exchange of such Debt Securities, (B) rights of Holders to receive payments of the principal of, premium, if any, and interest, if any, on such Debt Securities as they shall become due from time to time and other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default rights, duties and obligations of Holders as beneficiaries hereof with respect to the amounts so deposited with the Trustee, and (C) the rights, obligations and immunities of the Trustee hereunder (for which purposes the Debt Securities of such the series in question shall have occurred be deemed outstanding)), and be continuing the Trustee, on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result written request of the Company's exercise of its option under this Section 8.02 , accompanied by a Company Certificate, shall execute 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 or (y) an Opinion of Counsel deliver to the same effect Company such instruments as shall be requisite to evidence the ruling described in clause (x) above and (ii) an Opinion satisfaction of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 Indenture with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveDebt Securities.
Appears in 1 contract
Samples: Indenture (Case Credit Corp)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably irrevocable provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the United States Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 8.2 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 or occurred, (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change in law, or (iiz) an instrument, in form reasonably satisfactory to the Trustee, wherein the Company, notwithstanding the payment and discharge, pursuant to this Section 8.2, of its indebtedness in respect of Securities of any series, or any portion of the principal amount thereof, shall assume the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee such additional sums of money, if any, or additional U.S. Government Obligations (meeting the requirements of this Article 8), if any, or any combination thereof, at such time or times, as shall be necessary, together with the money and/or U.S. Government Obligations theretofore so deposited, to pay when due the Principal of and premium, if any, and interest due and to become due on such Securities or portions thereof; provided, however, that such instrument may state that the obligation of the 38 44 Company to make additional deposits as aforesaid shall be subject to the delivery to the Company by the Trustee of a notice asserting the deficiency accompanied by an opinion of an independent public accountant of nationally recognized standing, selected by the Trustee, showing the calculation thereof, and (2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds finds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 8.2 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 2.2 through 2.12, 4.024.2, 7.077.7, 7.08 7.8 and 8.05 8.5 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 7.7 and 8.05 8.5 shall survive.
Appears in 1 contract
Samples: Indenture (Arrow Electronics Inc)
Defeasance. Except as provided belowThe Corporation, and the Company will Guarantor, if applicable, shall be deemed to have paid and will be discharged from any and all fully satisfied their obligations under this Indenture in respect of all of the Securities outstanding Debentures or all of the outstanding Debentures of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the CompanyCorporation, shall execute and deliver proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit full release of the Holders Corporation and the Guarantor from their covenants herein contained in respect of all of the Securities of such series, for payment outstanding Debentures or all of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration outstanding Debentures of any reinvestment and after payment series when, with respect to all of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities Debentures or all of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)outstanding Debentures of any series, as the case may be, the Corporation or the Guarantor has deposited or caused to be deposited with the Trustee as:
(a) trust funds in trust pursuant hereto, or made provision satisfactory to the Trustee for the payment of, an amount sufficient to pay, satisfy and discharge the entire amount of principal and accrued and unpaid interest to the maturity date of all the outstanding Debentures or all the outstanding Debentures of such series;
(b) trust property in trust pursuant hereto:
(i) in the event the Debentures are payable in Canadian currency, such deposit will not result in a breach or violation amount of direct obligations of, or constitute obligations the principal and interest of which are guaranteed by:
(A) the Government of Canada, or
(B) a default underprovince of Canada which are rated by both Dominion Bond Rating Service Limited and CBRS Inc. (or their successors or similar recognized rating services) at least AA and A+, this Indenture respectively, at the time of the deposit thereof, or
(ii) in the event the Debentures are payable in United States currency, such amount of direct obligations of, or obligations the principal and interest of which are guaranteed by, the Government of the United States of America, in each case as shall, together with the income to accrue thereon without consideration of any reinvestment thereof, be sufficient in the opinion of an independent chartered accountant (which may include the Corporation's auditors or the Guarantor's auditors) to pay, satisfy and discharge the entire amount of principal and accrued and unpaid interest to the maturity date of all the outstanding Debentures or all the outstanding Debentures of such series and for the payment of any taxes arising with respect to such deposited funds, obligations and/or other material agreement or instrument securities as same shall become due from time to which the Company is a party or by which it is bound;time; or
(c) no Default with respect the Corporation has delivered to the Securities Trustee all the outstanding Debentures or all the outstanding Debentures of such series shall have occurred and be continuing on the date for cancellation; FINOVA Trust Indenture Page 45 of such deposit;61 provided that in any case:
(d) the Company shall have delivered Corporation or the Guarantor has paid or caused to be paid all other sums payable with respect to all the Trustee (i) either (x) a ruling directed to outstanding Debentures or all the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities outstanding Debentures of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCseries; and
(e) the Company Corporation or the Guarantor has delivered to the Trustee an Officers' a Certificate and an Opinion of Counselthe Corporation or a Certificate of the Guarantor, in each as the case may be, stating that all conditions precedent provided for herein set forth in this Section 9.6 relating to the defeasance contemplated by this Section 8.02 payment, satisfaction and discharge of the Securities outstanding obligations relating to all the outstanding Debentures or all the outstanding Debentures of such series have been complied withwith by the Corporation or the Guarantor, as applicable. The Company's obligations Any deposits with the Trustee referred to in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 this Section 9.6 shall be made under the terms of an escrow trust agreement in form and 8.05 substance satisfactory to the Trustee and which provides for the due and punctual payment of the principal and accrued interest of all the outstanding Debentures or all the outstanding Debentures of such series. Upon the satisfaction of the conditions set forth in this Section 9.6 with respect to all the Securities outstanding Debentures or all the outstanding Debentures of such series series, the Corporation and the Guarantor shall have and be deemed to have satisfied all of their obligations under such Debentures and any related coupons and this Indenture insofar as such Debentures and any related coupons are concerned, except for the following which shall survive until unless otherwise terminated or discharged hereunder:
(a) the rights of the Holders of such Securities are no longer outstandingDebentures and any related coupons to receive, solely from the trust fund described herein, payments in respect of principal, premium, if any, and interest on such Debentures and any related coupons when due;
(b) the obligations of the Corporation pursuant to the provisions of Sections 2.10, 3.1 to 3.7 inclusive, 7.2 and 7.4;
(c) the obligations of the Corporation and the Guarantor pursuant to Section 13.3;
(d) the rights, powers, trusts, duties and immunities of the Trustee hereunder; and
(e) this Section 9.6. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.FINOVA Trust Indenture Page 46 of 61
Appears in 1 contract
Samples: Trust Indenture (Finova Group Inc)
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of Funding Account, an amount such that the amount on deposit in the Principal Funding Account following such deposit is equal to the Class A Outstanding Principal Amount, the Class M Outstanding Principal Amount, the Class B Outstanding Principal Amount and Excess Collateral Outstanding Principal Amount minus any Retained Transferor Securities Amount and (y) in the Accumulation Period Reserve Account, an amount equal to or greater than the accrued and unpaid interest on the Investor Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in through the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to day preceding the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest date on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
Defeasance occurs; (c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an “investment company” within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iii) a Ratings Event will not occur, the Series 2004-2 Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust assets (a “Defeasance”) and 8.05 with respect the percentages applicable to the Securities allocation to the Series 2004-2 Securityholders of such series Principal Collections, Finance Charge Collections and Defaulted Receivables will be reduced to zero.
Section 7. Article V of the Agreement. Article V of the Agreement shall survive until such Securities are no longer outstanding. Thereafter, read in its entirety as follows and shall be applicable only to the Company's obligations in Sections 7.07 and 8.05 shall survive.Series 2004-2 Securities:
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Metris Receivables Inc)
Defeasance. Except as provided below, (i) the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and (ii) the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, Company shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(aA) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bB) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(cC) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dD) the Company shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its the option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(eE) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.
Appears in 1 contract
Samples: Indenture (Servicemaster Co)
Defeasance. Except as provided below, the Company (a) All Base Rent will be deemed to have be paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfiedwhen:
(ai) money or Defeasance Obligations or a combination thereof which mature as to principal and interest in such amounts and at such times as will insure the Company has availability, without reinvestment, of sufficient moneys to pay when due the principal and interest on and any other payments (including redemption premiums) in connection with all then outstanding Certificates to the final maturity date thereof or to a date on which such Certificates have been called for prior redemption is irrevocably deposited in trust with the a commercial bank with trust powers and irrevocably set aside exclusively to make such payments, and
(ii) all reasonable, necessary and proper fees, compensation and expenses of Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered pertaining to the Lease and Trustee) without consideration of any reinvestment 's duties in connection therewith and after payment of all federal, state and local taxes with the Certificates are paid or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the satisfaction of Trustee), as the case may be;.
(b) such deposit will not result in a breach or violation ofWhen all Base Rent is deemed paid, or constitute a default underas provided above, this Indenture or any other material agreement or instrument to which and Trustee has received the Company is a party or by which it is bound;
(c) no Default with respect to the Securities written legal opinion of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service nationally recognized bond counsel to the effect that the Holders deposit of money or Defeasance Obligations in trust will not cause the interest components of the Securities of such series will not recognize incomeBase Rent, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 and will thereafter payable from those sources, to be subject to federal income tax on under the same amount Code, Lessor (and in any Certificate holder) will be entitled to payment of that Base Rent solely from that money or the same manner proceeds of those Defeasance Obligations and at the same times right, title and interest of Lessor and Trustee under this Lease as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above Project shall then cease, terminate and (ii) an Opinion of Counsel become void, and Lessee, or its designee shall succeed to the effect that the Holders of the Securities of such series have a valid security all right, title and interest in the trust funds Project, subject however, to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of any requirements which shall survive any such series have been complied withtermination. The CompanyLessor shall then execute such instruments and undertake all such acts, all at the expense of Xxxxxx including, without limitation, recording fees, transfer taxes if applicable, and reasonable attorneys' fees to evidence transfer of all remaining title interest in the Project to Lessee or Xxxxxx's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivedesignee.
Appears in 1 contract
Samples: Lease Purchase Agreement
Defeasance. Except as provided below, the (a) The Company will shall cease to be deemed to have paid and will be discharged from under any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect obligation with respect to the Securities of such series PIES or with respect to this Indenture with respect to the PIES (other than the Continuing Obligations) on the 91st day after the following applicable conditions have been satisfied (and the Trustee, at the expense thereafter such non-compliance shall not constitute an Event of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
Default): (ai) the Company has shall have irrevocably deposited with respect to the PIES in trust with the Trustee as trust funds funds, specifically pledged as security for, and dedicated solely for to, the benefit of the Holders with respect to each PIES (A) the maximum number of shares of AirTouch Common Stock and of any Reported Securities, in either case, that could (based on the Share Components of the Exchange Rate at the time of deposit and assuming no exercise of the Cash Delivery option and full exercise of the option to deliver Reported Securities in lieu of cash in respect of such seriessecurities received in an Adjustment Event) be deliverable at Maturity, for payment of the Principal of with respect to such PIES and interest on the Securities of such series, money or (B) U.S. Government Obligations (as defined below), cash or a combination thereof thereof, in any case, sufficient (unless without any reinvestment of interest or principal of such funds consist solely of moneyU.S. Government Obligations), in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration Trustee at or prior to the time of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trusteesuch deposit, to pay and discharge the Principal of and accrued not later than one day before due (1) all interest on such PIES to Stated Maturity and (2) the outstanding maximum cash amount with respect to such PIES that could be deliverable at Maturity with respect to any cash or property other than Reported Securities received in an Adjustment Event; (ii) no Default or Event of Default with respect to this Indenture or the PIES shall have occurred and be continuing on the date of such series to maturity deposit or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), shall occur as the case may be;
(b) a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect , as evidenced to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have Trustee in an Officers' Certificate delivered to the Trustee concurrently with such deposit; (iiii) either (x) a ruling directed the Company has delivered to the Trustee received from an Opinion of Counsel in form satisfactory to the Internal Revenue Service Trustee to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal Federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 described in clause (i) and will be subject to federal Federal income tax on the same amount and in the same manner and at the same times time as would have been the case if such deposit and defeasance option had not occurred been exercised; (iv) the Company has paid or (y) an Opinion duly provided for payment of Counsel all amounts then due to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel Trustee pursuant to the effect that the Holders terms of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCthis Indenture; and
(ev) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating stating, as applicable, that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 discharge of the Securities of such series Company's obligations to comply with certain covenants have been complied with; and (vi) the Company has delivered to the Trustee an Opinion of Counsel to the effect that after the passage of 90 days after the deposit, the trust funds will not be subject to the effect of any applicable Federal or State bankruptcy, insolvency or similar law.
(b) If any Dilution Event or any Adjustment Event shall occur, in either case, following a deposit (an "initial deposit") pursuant to paragraph (a) of this Section, then the Company shall make an additional deposit with the Trustee (or the Trustee shall remit to the Company) a number of shares of AirTouch Common Stock, Reported Securities, U.S. Government Obligations and an amount of cash such that the Trustee will hold the number of such securities and amount of cash that it would be entitled to hold if such initial deposit (and any permitted substitutions described below) were made immediately following such event.
(c) Unless the Company is in default under the Indenture, it may, at its option, substitute for the shares of AirTouch Common Stock or Reported Securities deposited pursuant to paragraph (a) of this Section U.S. Government Obligations having an aggregate market value at the time of substitution and at daily xxxx-to-market valuations thereafter of not less than 125% (except as provided below) of the product of the Closing Price per share of AirTouch Common Stock or security of Reported Securities, respectively, on the day immediately preceding the time of each substitution or valuation multiplied by the number of shares of AirTouch Common Stock or Reported Securities, respectively, for which such obligations are being substituted. The Company may, at its option substitute U.S. Government Obligations for shares of AirTouch Common Stock or for Reported Securities pledged after any dilution adjustment or Adjustment Event in the same manner described above for such securities pledged pursuant to paragraph (a) of this Section. Prior to any substitution made pursuant to this paragraph, the Company shall delivery to the Trustee a legal opinion of nationally recognized counsel to the effect that the deposit of U.S. Government Obligations having an aggregate market value of 125% of the amount specified above is sufficient to avoid a violation of any applicable federal law or regulation. If the Company delivers an opinion to the foregoing effect but with respect to a greater percentage, then all references in this paragraph to 125% shall be deemed to be references to such greater amount, as in the opinion of such counsel, shall be required to avoid any such violation.
(d) Except in the case of U.S. Government Obligations deposited in respect of a cash amount that could be deliverable at Maturity, the Trustee will promptly pay over to the Company any dividends, interest, principal or other payments received by the Trustee in respect of any securities and deposit with it, unless the Company is in default on its obligations under the PIES, or unless the payment of such amount to the Company would cause the cash and securities on deposit with the Trustee to become insufficient under the provisions of this Section 8.01.
(e) Notwithstanding anything to the contrary in this Section 8.01, the Company shall not substitute U.S. Government Obligations and shall not replace AirTouch Common Stock or Reported Securities within the 21 Business Days preceding Stated Maturity. If at Maturity the number of shares of AirTouch Common Stock (or, after an Adjustment Event, Reported Securities) on deposit with the Trustee pursuant to this Article 8 is insufficient to meet the obligations (based on the actual Maturity Price and the assumption that the Cash Delivery Option is not exercised) under any PIES to deliver such securities, the Trustee will distribute to the Holders pro rata all of such securities held by it and, as to the remaining obligation to deliver such securities, shall deliver the cash equivalent that the Company would have been allowed to deliver thereunder, in the form of cash generated from the liquidation of U.S. Government Obligations then pledged by the Company.
(f) Unless the Trustee holds, as of the 21st Business Day preceding Stated Maturity, sufficient shares of AirTouch Common Stock with which to settle the PIES in their entirety, the Company will notify The Depository Trust Company and the Trustee and publish a notice in a daily newspaper of national circulation stating the proportions of securities and cash that will be delivered at Maturity. The Trustee shall promptly remit to the Company any excess cash or securities on deposit after all amounts owing in respect of the PIES at Maturity have been paid in full.
(g) After a deposit by the Company in accordance with this Section in respect of the PIES, the Trustee upon request shall acknowledge in writing the discharge of the Company's obligations under the PIES in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 respect of which the deposit has been made and 8.05 under the Indenture with respect to the Securities of such series PIES except for those Continuing Obligations specified above.
(h) U.S. Government Obligations shall survive until such Securities are no longer outstanding. Thereafter, only not be callable at the Companyissuer's obligations in Sections 7.07 and 8.05 shall surviveoption.
Appears in 1 contract
Defeasance. Except as provided belowThe Indenture provides that the Company (and to the extent applicable, the Company Guarantors), at its option, (a) will be deemed to have paid and will be discharged Discharged from any and all obligations in respect of the Securities Debentures (except in each case for certain obligations to register the transfer or exchange of any series the Debentures, replace stolen, lost or mutilated Debentures, maintain paying agencies and hold moneys for payment in trust) or (b) need not comply with the provisions covenants described above under "Restrictive Covenants" and certain Events of this Indenture Default (other than those arising out of the failure to pay interest or principal on the Debentures and certain events of bankruptcy, insolvency and reorganization) will no longer be in effect constitute Events of Default with respect to such Debentures, in each case if the Securities of such series (and Company deposits with the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such seriestrust, money or U.S. Government Obligations the equivalent in securities of the government which issued the currency in which the Debentures are denominated or government agencies backed by the full faith and credit of such government, or a combination thereof, which through the payment of interest thereon and principal thereof in accordance with their terms will provide money in an amount sufficient to pay all the principal (unless including any mandatory sinking fund payments) of, and interest on, such funds consist solely series on the dates such payments are due in accordance with the terms of moneysuch Debentures. To exercise any such option, in the Company is required, among other things, to deliver to the Trustee an opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered counsel to the Trusteeeffect that (i) without consideration of any reinvestment the deposit and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by related defeasance would not cause the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities Holders of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal Federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 and will be subject to federal income tax on the same amount and and, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel a Discharge pursuant to the same effect as the ruling described in clause (x) above a), accompanied by a ruling to such effect received from or published by the United States Internal Revenue Service and (ii) an Opinion of Counsel to the effect that the Holders creation of the Securities defeasance trust will not violate the Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) 1940, as amended. In addition, the Company has delivered is required to deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to such deposit was not made by the defeasance contemplated by this Section 8.02 Company with the intent of preferring the Holders over other creditors of the Securities Company or with the intent of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12defeating, 4.02hindering, 7.07, 7.08 and 8.05 with respect to delaying or defrauding creditors of the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveCompany or others.
Appears in 1 contract
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee Principal Funding Account, an amount such that the amount on de- posit in the Principal Funding Account following such deposit is equal to the sum of the Class A Outstanding Principal Amount and the Class B Outstanding Principal Amount, and (y) in the Accumulation Period Reserve Account, an amount equal to or greater than the Covered Amount, as trust funds solely estimated by the Transferor, for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on period from the date of such deposit;
deposit to the Principal Funding Account through the Expected Final Payment Date; (dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iv) a Ratings Event will not occur, the Series 1998-2 Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust assets and 8.05 with respect the percentages applicable to the Securities allocation to the Series 1998-2 Securityholders of such series shall survive until such Securities are no longer outstandingPrincipal Collections, Finance Charge Collections and Defaulted Receivables will be reduced to zero. ThereafterUpon the satisfaction of the foregoing conditions, only the Company's obligations in Sections 7.07 and 8.05 shall surviveClass B Invested Amount will be reduced to zero.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Metris Receivables Inc)
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee as trust funds solely for Principal Funding Account, an amount such that the benefit amount on deposit in the Principal Funding Account following such deposit is equal to the Class A Outstanding Principal Amount, (y) in the Principal Account, an amount equal to the sum of the Holders of Class B Outstanding Principal Balance and Excess Collateral Outstanding Principal Balance and (z) in the Securities of such seriesAccumulation Period Reserve Account, for payment of an amount equal to or greater than the Principal of accrued and unpaid interest on the Investor Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in through the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to day preceding the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest date on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
Defeasance occurs; (c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iii) a Ratings Event will not occur, the Series 2001-1 Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust assets and 8.05 with respect the percentages applicable to the Securities allocation to the Series 2001-1 Securityholders of such series shall survive until such Securities are no longer outstanding. ThereafterPrincipal Collections, only the Company's obligations in Sections 7.07 Finance Charge Collections and 8.05 shall surviveDefaulted Receivables will be reduced to zero.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Metris Master Trust)
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of Funding Account, an amount such that the amount on deposit in the Principal Funding Account following such deposit is equal to the Class A Outstanding Principal Amount, and (y) in the Payment Reserve Account, an amount sufficient to pay all remaining interest on the Class A Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient scheduled to accrue through the Expected Final Payment Date; (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Payment Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iv) a Ratings Event will not occur, the Series 2002-3 Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust Property (a "Defeasance") and 8.05 with respect the percentages applicable to the Securities allocation to the Series 2002-3 Securityholders of such series Principal Collections, Finance Charge Collections and Defaulted Receivables will be reduced to zero. Upon satisfaction of the foregoing conditions, the Class B Invested Amount will be reduced to zero.
Section 7. Article V of the Agreement. Article V of the Agreement shall survive until such Securities are no longer outstanding. Thereafter, read in its entirety as follows and shall be applicable only to the Company's obligations in Sections 7.07 and 8.05 shall survive.Series 2002-3 Securities:
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Metris Master Trust)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money sufficient or U.S. Government Obligations Obligations, which through the payment of principal and interest thereon will be sufficient, or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is boundbound or be in contravention of any term or provision of any agreement creating or evidencing Senior Indebtedness;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option such discharge under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCabove; and
(e) the Company has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's ’s obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 7.08, 8.04 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's ’s obligations in Sections 7.07 and 8.05 shall survive.
Appears in 1 contract
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee Principal Funding Account, an amount such that the amount on deposit in the Principal Funding Account following such deposit is equal to the sum of the Class A Outstanding Principal Amount and the Class B Outstanding Principal Amount, and (y) in the Accumulation Period Reserve Account, an amount equal to or greater than the Covered Amount, as trust funds solely estimated by the Transferor, for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on period from the date of such deposit;
deposit to the Principal Funding Account through the Expected Final Payment Date; (dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iv) a Ratings Event will not occur, the Series 1998-3 Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust assets and 8.05 with respect the percentages applicable to the Securities allocation to the Series 1998-3 Securityholders of such series Principal Collections, Finance Charge Collections and Defaulted Receivables will be reduced to zero. Upon the satisfaction of the foregoing conditions, the Class B Invested Amount will be reduced to zero.
SECTION 7. Article V of the Agreement. Article V of the Agreement shall survive until such Securities are no longer outstanding. Thereafter, read in its entirety as follows and shall be applicable only to the Company's obligations in Sections 7.07 and 8.05 shall survive.Series 1998-3 Securities:
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Metris Receivables Inc)
Defeasance. Except as provided below, the Company Issuer will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture and the Cable Guarantees will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the CompanyIssuer, shall execute proper instruments in form and substance satisfactory to the Issuer and the Trustee acknowledging the same); provided that the following conditions shall have been satisfied:
(ai) the Company Issuer has irrevocably deposited in trust with the Trustee as trust funds specifically pledged as security for, and dedicated solely for the benefit of the to, Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture Indenture, the Cable Guarantees or any other material agreement or instrument to which the Company Issuer is a party or by which it is bound;
(ciii) no default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(div) the Company Issuer shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal Federal income tax purposes as a result of the Company's Issuer’s exercise of its option under this Section 8.02 9.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change in law and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(ev) the Company Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.02 of the Securities of such series have been complied with. The Company's Issuer’s obligations in Sections 2.02 2.03 through 2.122.11, 4.023.02, 7.075.06, 7.08 5.09 and 8.05 9.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's Issuer’s obligations in Sections 7.07 5.06 and 8.05 9.05 shall survive.
Appears in 1 contract
Samples: Indenture (Comcast Corp)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the CompanyCompany and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such seriesSecurities, for payment of the Principal of and of, interest (including Additional Interest, if any) on the Securities of such seriesSecurities, and any other sum due hereunder, money sufficient or U.S. Government Obligations Obligations, which through the payment of principal and interest thereon will be sufficient, or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest (including Additional Interest, if any) on the outstanding Securities of such series Securities, and to pay any other sums due by it hereunder to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
; (d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option such discharge under this Section 8.02 9.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to above, which opinion must be based either on a change in applicable U.S. federal income tax laws or regulations occurring after the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCdate hereof; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.
Appears in 1 contract
Samples: Indenture (Credit Suisse Group Funding (Guernsey) LTD)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money When principal or U.S. Government Obligations or a combination thereof sufficient redemption price (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;) of, and interest on, any Bonds issued hereunder has been paid, or provision shall have been made for payment of the same, together with the compensation of the Trustee and all other sums payable hereunder by the Corporation and the City, the right, title and interest of the Trustee with respect to such Bonds shall thereupon cease and the Trustee shall release this Trust Agreement and shall execute such documents to evidence such releases as may be reasonably required by the Corporation and shall turn over to the Corporation or to such person, body or authority as may be entitled to receive the same all balances then held by it hereunder; provided, however, that the City shall in all events remain liable under the Facilities Agreement (subject to Section 4.7 thereof) until all amounts due and owing thereunder have been paid.
(b) Provision for the payment of the Series 2015 Bonds shall be deemed to have been made when the Trustee holds, in an irrevocable deposit, under the provisions hereof (i) cash in an amount sufficient to make all payments specified above with respect to all of such Bonds, or (ii) Defeasance Obligations maturing on or before the date or dates when the payments specified above shall become due, the principal amount of which and the interest thereon, when due, is or will be, in the aggregate, sufficient without reinvestment to make all payments specified above with respect to such Bonds, or (iii) any combination of such cash and such Defeasance Obligations the amounts of which and interest thereon, when due, are or will be, in the aggregate, sufficient without reinvestment to make all payments specified above on such Bonds; provided that, to the extent such deposit will does not result in consist of uninvested cash, the Trustee shall have received a breach report of an independent accountant or violation of, or constitute a default under, this Indenture or firm of accountants verifying that the computations of the amount available from Defeasance Obligations when added to any other material agreement or instrument cash available shall be sufficient to which meet the Company is a party or by which it is bound;requirements hereof.
(c) no Default Neither the obligations nor the moneys deposited with respect the Trustee pursuant to this Section 9.1 shall be withdrawn or used for any purpose other than, and shall be segregated and held in trust for, the Securities payment of such series shall have occurred the principal or redemption price of, and be continuing on the date of such deposit;interest on, said Bonds.
(d) Whenever moneys or obligations shall be deposited with the Company shall have delivered Trustee for the payment or redemption of Bonds more than 60 days prior to the Trustee (i) either (x) a ruling directed date that such Bonds are to mature or be redeemed, the Trustee received from shall mail a notice stating that such moneys or obligations have been deposited and identifying the Internal Revenue Service Series 2015 Bonds for the payment of which such moneys or obligations are being held, to the effect that the Holders of Bonds for the Securities payment of which such series will not recognize income, gain moneys or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivebeing held.
Appears in 1 contract
Samples: Trust Agreement
Defeasance. Except as provided below, the Company Issuer will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture and the Cable Guarantees will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the CompanyIssuer, shall execute proper instruments in form and substance satisfactory to the Issuer and the Trustee acknowledging the same); provided that the following conditions shall have been satisfied:
(ai) the Company Issuer has irrevocably deposited in trust with the Trustee as trust funds specifically pledged as security for, and dedicated solely for the benefit of the to, Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture Indenture, the Cable Guarantees or any other material agreement or instrument to which the Company Issuer is a party or by which it is bound;
(ciii) no default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(div) the Company Issuer shall have delivered to the Trustee (i) Error! Bookmark not defined. either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal Federal income tax purposes as a result of the CompanyIssuer's exercise of its option under this Section 8.02 9.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) based upon a change in law and Error! Bookmark not defined. an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(ev) the Company Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.02 of the Securities of such series have been complied with. The CompanyIssuer's obligations in Sections 2.02 2.03 through 2.122.11, 4.023.02, 7.075.06, 7.08 5.09 and 8.05 9.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the CompanyIssuer's obligations in Sections 7.07 5.06 and 8.05 9.05 shall survive.
Appears in 1 contract
Samples: Indenture (Comcast Mo Group Inc)
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee as trust funds solely for Principal Funding Account, an amount such that the benefit amount on deposit in the Principal Funding Account following such deposit is equal to the Class A Outstanding Principal Amount, (y) in the Principal Account, an amount equal to the sum of the Holders of Class B Outstanding Principal Balance and Excess Collateral Outstanding Principal Balance and (z) in the Securities of such seriesAccumulation Period Reserve Account, for payment of an amount equal to or greater than the Principal of accrued and unpaid interest on the Investor Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in through the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to day preceding the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest date on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
Defeasance occurs; (c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iii) a Ratings Event will not occur, the Series 2000-1 Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust assets and 8.05 with respect the percentages applicable to the Securities allocation to the Series 2000-1 Securityholders of such series shall survive until such Securities are no longer outstanding. ThereafterPrincipal Collections, only the Company's obligations in Sections 7.07 Finance Charge Collections and 8.05 shall surviveDefaulted Receivables will be reduced to zero.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Metris Master Trust)
Defeasance. Except as provided belowWhen interest on, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series principal or Redemption Price (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) of, the Bonds of a Series or any portion thereof to be defeased have been paid, or there shall have been deposited with the Trustee or such deposit will not result other escrow agent designated in a breach or violation ofCertified Resolution of the Issuer (the “Escrow Agent”) moneys sufficient, or constitute a default underDefeasance Securities, this Indenture or the principal of and interest on which, when due, together with any other material agreement or instrument moneys, remaining uninvested, will provide sufficient moneys to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee fully pay (i) either (x) such Bonds of a ruling directed Series or portion thereof to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize incomebe defeased, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel any other sums payable hereunder by the Issuer, but only to the effect that extent the Holders Issuer has agreed to pay the same on or before the defeasance of the Securities Bonds, the right, title and interest of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to such Bonds of a Series or portion thereof to be defeased shall thereupon cease, the Securities lien of the Indenture on the Pledged Revenues, and the Funds and Accounts established under the Indenture shall be defeased and discharged, and the Trustee, on demand of the Issuer, shall release the Indenture as to such series Bonds of a Series or portion thereof to be so defeased and shall survive until execute such Securities are no longer outstanding. Thereafterdocuments to evidence such release as may be reasonably required by the Issuer and shall turn over to the Issuer or to such Person, only body or authority as may be entitled to receive the Company's obligations same all balances remaining in Sections 7.07 any Series Funds and 8.05 shall surviveAccounts (other than the Rebate Fund) upon the defeasance in whole of all of the Bonds of a Series.
Appears in 1 contract
Samples: Master Trust Indenture
Defeasance. Except as provided belowUpon the Company's exercise of the option specified in Section 4.3 applicable to this Section with respect to the Securities of a series, the Company will shall be deemed to have been discharged from its obligations with respect to such Securities and any coupons appertaining thereto (except as specified below) on the date the conditions set forth in Section 4.6 are satisfied (hereinafter "defeasance"). For this purpose, such defeasance means that the Company shall be deemed to have paid and will discharged the entire indebtedness represented by such Securities and any coupons appertaining thereto which shall thereafter be discharged from any and all obligations in respect deemed to be "Outstanding" only for the purposes of the Securities of any series Section 4.7 and the provisions other Sections of this Indenture will no longer be referred to in effect with respect clause (ii) of this Section, and to the have satisfied all its other obligations under such Securities of and any coupons appertaining thereto and this Indenture insofar as such series Securities and any coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, shall on Company Order execute proper instruments acknowledging the same); provided that , except the following conditions which shall have been satisfied:
survive until otherwise terminated or discharged hereunder: (ai) the Company has irrevocably deposited in trust with rights of Holders of such Securities and any coupons appertaining thereto to receive, solely from the Trustee as trust funds solely for the benefit described in Section 4.6(a) and as more fully set forth in such Section and in Section 4.7, payments in respect of the Holders principal of premium, if any, and interest, if any, on such Securities and any coupons appertaining thereto when such payments are due; (ii) the Company's obligations with respect to such Securities of such seriesunder Sections 3.4, for payment of the Principal of 3.5, 3.6, 9.2 and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment 9.3 and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the payment of Additional Amounts, if any, payable with respect to such Securities of such series shall have occurred and be continuing on the date of such deposit;
as specified pursuant to Section 3.1(b)(18); (diii) the Company shall have delivered to rights, powers, trusts, duties and immunities of the Trustee hereunder and (iiv) either (x) a ruling directed this Article 4. Subject to compliance with this Article 4, the Trustee received from Company may exercise its option under this Section notwithstanding the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's prior exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 4.5 with respect to the such Securities and any coupons appertaining thereto. Following a defeasance, payment of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivemay not be accelerated because of an Event of Default.
Appears in 1 contract
Samples: Indenture (Cadiz Inc)
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee Principal Funding Account, an amount such that the amount on deposit in the Principal Funding Account following such deposit is equal to the sum of the Class A Outstanding Principal Amount and the Class B Outstanding Principal Amount, and (y) in the Accumulation Period Reserve Account, an amount equal to or greater than the Covered Amount, as trust funds solely estimated by the Transferor, for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on period from the date of such deposit;
deposit to the Principal Funding Account through the Expected Final Payment Date; (dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iv) a Ratings Event will not occur, the Series 1998-3 Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust assets and 8.05 with respect the percentages applicable to the Securities allocation to the Series 1998-3 Securityholders of such series shall survive until such Securities are no longer outstandingPrincipal Collections, Finance Charge Collections and Defaulted Receivables will be reduced to zero. ThereafterUpon the satisfaction of the foregoing conditions, only the Company's obligations in Sections 7.07 and 8.05 shall surviveClass B Invested Amount will be reduced to zero.
SECTION 7. Article V
Appears in 1 contract
Defeasance. Except as provided belowPrior to February 17, 2011, the Company will be deemed shall not make any deposit of money and/or Eligible Obligations with respect to have paid any Senior Notes, or any portion of the principal amount thereof, as contemplated by Section 701 of the Base Indenture. On or after February 17, 2011, if the Company shall make any deposit of money and/or Eligible Obligations with respect to any Senior Notes, or any portion of the principal amount thereof, as contemplated by Section 701 of the Indenture, the Company shall not deliver an Officer's Certificate described in clause (z) in the first paragraph of said Section 701 unless the Company shall also deliver to the Trustee, together with such Officer's Certificate, either: an instrument wherein the Company, notwithstanding the satisfaction and will be discharged from any and all obligations discharge of its indebtedness in respect of the Securities Senior Notes, shall assume the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee or Paying Agent such additional sums of money, if any, or additional Eligible Obligations (meeting the requirements of Section 701), if any, or any series combination thereof, at such time or times, as shall be necessary, together with the money and/or Eligible Obligations theretofore so deposited, to pay when due the principal of and premium, if any, and interest due and to become due on such Senior Notes or portions thereof, all in accordance with and subject to the provisions of this Indenture will no longer said Section 701; provided, however, that such instrument may state that the obligation of the Company to make additional deposits as aforesaid shall be in effect with respect subject to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) delivery to the Company has irrevocably deposited in trust with by the Trustee as trust funds solely for of a notice asserting the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the deficiency accompanied by an opinion of a an independent public accountant of nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federalstanding, state and local taxes or other charges and assessments in respect thereof payable selected by the Trustee, to pay and discharge showing the Principal calculation thereof; or an Opinion of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service Counsel to the effect that that, as a result of a change in law occurring after the original issue date of the Senior Notes, the Holders of such Senior Notes, or portions of the Securities of such series principal amount thereof, will not recognize income, gain or loss for United States federal income tax purposes as a result of the satisfaction and discharge of the Company's exercise of its option under this Section 8.02 indebtedness in respect thereof and will be subject to United States federal income tax on the same amount amounts, at the same times and in the same manner and at the same times as would have been the case if such deposit satisfaction and defeasance discharge had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveeffected.
Appears in 1 contract
Defeasance. Except as provided below, The Corporation shall have the Company will right (the "Defeasance Option") to be deemed to have paid and will be discharged released from any and all obligations in respect of the Securities of any series and the provisions terms of this Indenture will no longer be in effect with respect relating to the Securities outstanding Notes of such series (and a Series specified by the Corporation in a written notice to the Trustee, and upon receipt of such notice the Trustee shall, at the request and expense of the CompanyCorporation, execute and deliver to the Corporation such deeds and other instruments as shall execute proper instruments acknowledging be necessary to release the same); provided that Corporation from the following conditions shall have been satisfiedterms of this Indenture relating to the Notes of the Series specified in such notice, except those relating to the indemnification of the Trustee, subject to the following:
(a) the Company has irrevocably deposited in trust with Corporation shall have delivered to the Trustee as trust evidence satisfactory to the Trustee that the Corporation has:
(1) segregated and deposited for the benefit of Holders of Notes of the Series sufficient funds solely for the payment of all principal, Premium, interest and other amounts due or to become due on the Notes of such Series to the Stated Maturity thereof,
(2) segregated and deposited for the benefit of the Holders of Trustee funds or otherwise made provision for the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federalremuneration and expenses of the Trustee to carry out its duties under this Indenture in respect of the Notes of such Series, state and
(3) segregated and local deposited funds for the payment of present taxes owing and any taxes arising with respect to all deposited funds or other charges and assessments provision for payment in respect thereof payable by of the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities Notes of such series Series, in each case irrevocably, pursuant to maturity or earlier redemption (irrevocably provided for under arrangements the terms of a trust agreement in form and substance satisfactory to the Corporation and the Trustee), as the case may be;
(b) the Trustee shall have received an opinion or opinions of Corporation Counsel to the effect that the Holders of the Notes of such Series will not be subject to any additional taxes as a result of the exercise by the Corporation of the Defeasance Option with respect to such Notes and that such Holders will be subject to taxes, if any, including those in respect of income (including taxable capital gains), on the same amount, in the same manner and at the same time or times as would have been the case if the Defeasance Option had not been exercised in respect of such Notes;
(c) no Event of Default shall have occurred and be continuing on the date of the deposit will referred to in Section 8.5(a);
(d) such release does not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Corporation is a party or by which it the Corporation is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(de) the Company Corporation shall have delivered to the Trustee (ian Officers' Certificate stating that the deposit referred to in Section 8.5(a) either (x) a ruling directed to was not made by the Trustee received from Corporation with the Internal Revenue Service to the effect that intent of preferring the Holders of the Securities Notes of such series will not recognize income, gain or loss for federal income tax purposes as a result Series over the other creditors of the Company's exercise Corporation or with the intent of its option under this Section 8.02 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 defeating, hindering, delaying or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders defrauding creditors of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCCorporation or others; and
(ef) the Company has Corporation shall have delivered to the Trustee an Officers' Certificate and an Opinion opinion of CounselCorporation Counsel as required pursuant to Sections 11.12 and 11.13, in each case stating that all conditions precedent provided for herein or relating to the defeasance contemplated by this Section 8.02 of the Securities exercise of such series Defeasance Option have been complied with. The CompanyCorporation shall be deemed to have made due provision for the depositing of funds if it deposits or causes to be deposited with the Trustee under the terms of an irrevocable trust agreement in form and substance satisfactory to the Corporation and the Trustee (each acting reasonably), solely for the benefit of the Holders of the Notes of the Series specified therein, money or debt Securities constituting direct obligations of Canada or an agency or instrumentality of Canada, which will be sufficient, in the written opinion of a firm of independent chartered accountants or an investment dealer acting reasonably and acceptable to the Trustee, to provide for payment in full when due of the Notes of such Series and all other amounts from time to time due and owing under this Indenture which pertain to the Notes of such Series. The Trustee shall hold in trust all money or Securities deposited with it pursuant to this Section 8.5 and shall apply the deposited money and the money derived from such Securities in accordance with this Indenture to the payment of principal of and Premium and interest on the Notes and, as applicable, other amounts. If the Trustee is unable to apply any money or Securities in accordance with this Section 8.5 by reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Corporation's obligations under this Indenture and the Notes shall be revived and reinstated as though no money or Securities had been deposited pursuant to this Section 8.5 until such time as the Trustee is permitted to apply all such money or Securities in Sections 2.02 through 2.12accordance with this Section 8.5, 4.02provided that if the Corporation has made any payment in respect of principal, 7.07Premium or interest on any Notes or, 7.08 and 8.05 with respect as applicable, other amounts because of the reinstatement of its obligations, the Corporation shall be subrogated to the Securities rights of the Holders of such series shall survive until Notes to receive such payment from the money or Securities are no longer outstanding. Thereafter, only held by the Company's obligations in Sections 7.07 and 8.05 shall surviveTrustee.
Appears in 1 contract
Defeasance. Except as provided below(a) The provisions of Sections 1402 and 1403 of the Senior Indenture, together with the Company will other provisions of Article XIV of the Senior Indenture, shall be deemed applicable to have paid the Notes. The provisions of Section 1403 of the Senior Indenture shall apply to the covenants set forth in Section 2.4 of this Supplemental Indenture and to those covenants specified in Section 1403 of the Senior Indenture.
(b) The Company, at its option (i) will be discharged from any and all obligations in respect to the Notes (except for certain obligations to register the transfer or exchange of the Securities Notes, to replace destroyed, stolen, lost or mutilated Notes, and to maintain an office or agency in respect of any series the Notes and hold moneys for payment in trust) or (ii) will be released from its obligations to comply with the provisions of this Section 2.4 hereof, and the occurrence of an Event of Default pursuant to Section 501 of the Senior Indenture will shall no longer be an Event of Default if, in effect either case, the Company irrevocably deposits with respect to the Securities of such series (and the Trustee, at the expense in trust, money or United States Government Obligations that through payment of interest thereon and principal thereof in accordance with their terms will provide money in an amount sufficient to pay all of the Companyprincipal of (and premium, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(aif any) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and any interest on the Securities Notes on the dates such payments are due (which may include one or more Redemption Dates designated by the Company) in accordance with the terms of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;Notes.
(c) Such a trust may only be established if, among other things, (i) no Event of Default or event which with respect to the Securities giving of such series notice or lapse of time, or both, would become an Event of Default under the Indenture shall have occurred and be continuing on the date of such deposit;
, (dii) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders holders of the Securities Notes of such series have will not recognize gain or loss for United States Federal income tax purposes as a valid security interest result of such deposit or defeasance and will be subject to United Stated Federal income tax in the trust funds subject same manner as if such defeasance had not occurred. In the event the Company omits to no prior liens comply with its remaining obligations under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the Indenture after a defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 Indenture with respect to the Securities Notes and the Notes are declared due and payable because of the occurrence of any undefeased Event of Default, the amount of money and United States Government Obligations on deposit with the Trustee may be insufficient to pay amounts due on the Notes at the time of the acceleration resulting from such series shall survive until Event of Default. However, the Company will remain liable in respect to such Securities are no longer outstandingpayments. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.ARTICLE THREE
Appears in 1 contract
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee Principal Funding Account, an amount such that the amount on deposit in the Principal Funding Account following such deposit is equal to the sum of the Class A Outstanding Principal Amount and the Class B Outstanding Principal Amount, and (y) in the Accumulation Period Reserve Account, an amount equal to or greater than the Covered Amount, as trust funds solely estimated by the Transferor, for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on period from the date of such deposit;
deposit to the Principal Funding Account through the Expected Final Payment Date; (dii) the Company Transferor shall have delivered to the Trustee (ia) either (x) a ruling directed to the Trustee received from the Internal Revenue Service an opinion of counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series will not recognize income1940, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or amended, (yb) an Opinion opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel counsel to the effect that the Holders following such deposit none of the Trust, the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, would constitute a Pay Out Event, to occur; and (iv) a Ratings Event will not occur, the Series 1999- Securities of such series have a valid will no longer be entitled to security interest of the Trust in the trust funds subject to no prior liens under Receivables and, except those set forth in clause (i) above, other Trust assets and the UCC; and
(e) the Company has delivered percentages applicable to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating allocation to the defeasance contemplated by this Section 8.02 Series 1999- Securityholders of Principal Collections, Finance Charge Collections and Defaulted Receivables will be reduced to zero. Upon the satisfaction of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12foregoing conditions, 4.02, 7.07, 7.08 and 8.05 with respect the Credit Enhancement Invested Amount will be reduced to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivezero.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Metris Master Trust)
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee as trust funds solely for Principal Funding Account, an amount such that the benefit amount on deposit in the Principal Funding Account following such deposit is equal to the Class A Outstanding Principal Amount, (y) in the Principal Account, an amount equal to the sum of the Holders of Class B Outstanding Principal Balance and Excess Collateral Outstanding Principal Balance and (z) in the Securities of such seriesAccumulation Period Reserve Account, for payment of an amount equal to or greater than the Principal of accrued and unpaid interest on the Investor Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in through the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to day preceding the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest date on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
Defeasance occurs; (c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iii) a Ratings Event will not occur, the Series 2001-4 Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust assets (a "Defeasance") and 8.05 with respect the percentages applicable to the Securities allocation to the Series 2001-4 Securityholders of such series Principal Collections, Finance Charge Collections and Defaulted Receivables will be reduced to zero.
Section 7. Article V of the Agreement. Article V of the Agreement shall survive until such Securities are no longer outstanding. Thereafter, read in its entirety as follows and shall be applicable only to the Company's obligations in Sections 7.07 and 8.05 shall survive.Series 2001-4 Securities:
Appears in 1 contract
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of Funding Account, an amount such that the amount on deposit in the Principal Funding Account following such deposit is equal to the Class A Outstanding Principal Amount, and (y) in the Payment Reserve Account, an amount sufficient to pay all remaining interest on the Class A Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient scheduled to accrue through the Expected Final Payment Date; (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Payment Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iv) a Ratings Event will not occur, the Series 2002-4 Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust Property (a "Defeasance") and 8.05 with respect the percentages applicable to the Securities allocation to the Series 2002-4 Securityholders of such series Principal Collections, Finance Charge Collections and Defaulted Receivables will be reduced to zero. Upon satisfaction of the foregoing conditions, the Class B Invested Amount will be reduced to zero.
Section 7. Article V of the Agreement. Article V of the Agreement shall survive until such Securities are no longer outstanding. Thereafter, read in its entirety as follows and shall be applicable only to the Company's obligations in Sections 7.07 and 8.05 shall survive.Series 2002-4 Securities:
Appears in 1 contract
Samples: Supplement (Metris Receivables Inc)
Defeasance. Except as provided below(A) Subject to Section 10.1, the Company will Issuer shall be deemed to have paid the principal of, premium, if any, and will be discharged from interest, if any, on any Security or Securities outstanding hereunder as and all obligations in respect of when the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions same shall have been satisfied:
(a) become due and payable, if the Company has Issuer shall have irrevocably deposited or caused to be deposited in trust with the Trustee as trust (i) funds solely for in an amount (in such currency, currencies or currency unit or units in which such outstanding Securities are payable) or (ii) in the benefit case of the Holders of the Securities of such seriesdenominated in Dollars, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyas defined below) or, in the case of Securities denominated in a Foreign Currency, Foreign Government Securities, which through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one business day before the due date of any payment of principal (including any premium) and interest, if any, under such Securities, money in an amount, or (iii) a combination (i) and (ii), sufficient (in the opinion with respect to (ii) and (iii) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) to pay (without consideration investment or reinvestment of any reinvestment kind) and after payment discharge each installment of all federalprincipal of (including any premium), state and local taxes interest, if any, on, such outstanding Securities on the dates such installments of interest or other charges and assessments principal are due, in respect thereof payable by the Trusteecurrency, currencies or currency unit or units, in which such Securities are payable, or if the Securities of such series are to be called for redemption, to pay and discharge the Principal of and accrued interest redemption price on the outstanding Securities called for redemption on the applicable redemption date. Upon receipt by the Trustee of such series to maturity funds, U.S. Government Obligations and/or Foreign Government Securities, in accordance with this Section, together with any required documents, the Trustee shall, upon receipt of a Company Order, acknowledge in writing that the Security or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach Securities or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default portions thereof with respect to which such deposit was made are deemed to have been paid for all purposes of this Indenture and that the Securities entire indebtedness of such series shall the Company in respect thereof is deemed to have occurred been satisfied and be continuing on the date of such deposit;discharged.
(dB) A Security of any particular series may also provide that the Company Issuer shall as a condition of effectuating this Section 10.2 have either:
(a) delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 an Officer’s Certificate 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that (1) for Federal income tax purposes, the deposit of such cash and/or U.S. Government Obligations or Foreign Government Securities in trust with the Trustee and the satisfaction and discharge of this Indenture with respect to Securities of such series pursuant to this Section 10.2 will not cause the Holders of Securities of such series to recognize income, gain or loss at such time and (2) for Federal income tax purposes, such Holders (and future Holders of Securities of such series) will be subject to tax in the same manner as if the events described in the preceding clause (A) had not occurred, and (ii) an undertaking providing that the Issuer shall indemnify the Trustee on an after-tax basis against any increase in tax liability caused by the defeasance referred to in this Section 10.2 resulting from any change in Federal, state or local tax law subsequent to the date referred to in the last sentence of paragraph (A) of this Section 10.2 to the extent necessary to retire the Securities of such series have a valid security interest as provided in the trust funds subject to no prior liens under last sentence of clause (A) of this Section 10.2; or, in the UCC; andalternative, or
(eb) entered into an undertaking providing that the Company has delivered to Issuer shall indemnify the Trustee an Officers' Certificate and an Opinion the Holders (and future Holders) of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations on an after-tax basis against any increase in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect tax liability caused by the defeasance referred to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivethis Section 10.2.
Appears in 1 contract
Defeasance. Except as provided belowWhen there are in the Bond Fund and/or the Credit Facility Fund sufficient funds, the Company will be deemed to have paid or non-callable and will be discharged from any non-prepayable Government Obligations in such principal amounts, bearing interest at such rates and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with such maturities (including, with respect to any Bonds in the Securities Weekly Mode, maturities no greater than seven (7) days to fund the payment of the Purchase Price) as will provide, without reinvestment, sufficient funds to pay the Purchase Price or principal of, premium, if any, and interest on the Bonds in full as and when such series amounts become due, and when all the rights hereunder of the Issuer (including the right to receive payments under Paragraphs 308(b)(i) and (ii)), the Bank and of the Trustee have been provided for (1) the Bondowners will cease to be entitled to any right, benefit or security under this Agreement except the right to receive payment of the funds deposited and held for payment and other rights set forth below or which rights by their nature cannot be satisfied prior to or simultaneously with termination of the lien hereof, (2) the security interests created by this Agreement (except in such funds and investments) shall terminate, except to the extent that Borrower has reimbursement obligations to Bank under the Credit Facility and (3) the Issuer and the Trustee shall execute and deliver such instruments as may be necessary to discharge the lien and security interests created hereunder; provided, however, that (a) with respect to any Bonds that are supported by a Credit Facility, all such funds and obligations in the Bond Fund and/or Credit Facility Fund shall be Eligible Funds; (b) if any such Bonds are to be redeemed prior to the maturity thereof, such Bonds shall have been duly called for redemption or irrevocable written instructions for such a call shall have been given to the Trustee; and (c) if the Bonds bear interest at the Weekly Rate, the Trustee shall have received written confirmation from S&P, if S&P is then rating the Bonds, that the proposed defeasance will not in and of itself cause a reduction or withdrawal of the rating then in effect on the Bonds. Upon such defeasance, the funds and investments required to pay or redeem the Bonds in full shall be irrevocably set aside for that purpose. The Trustee shall cause to be mailed to all Bondowners in the manner herein specified for redemption of Bonds within fifteen (15) days of the conditions of this section being met a notice stating that such conditions have been met and that the lien of this Agreement has been discharged, and, if the Bonds are to be redeemed prior to maturity, specifying the date of redemption and the redemption price. Any funds or property held by the Trustee for payment of the Bonds under this section and not required for such payment shall (unless there is an Event of Default hereunder, in which case they shall be applied as provided in Section 604), after satisfaction of all the rights of the Issuer and the Trustee, at the expense and payment of the Companyrebate, if any, due to the United States under IRC Section 148(f), and upon such indemnification, if any, as the Issuer or the Trustee may reasonably require, be distributed to the Borrower subject to Bank's security interest. If Bonds are not presented for final payment when due and moneys are available in the hands of the Trustee therefor, the Trustee shall, without liability for interest thereon, continue to hold the moneys held for that purpose subject to Subsection 304(c), and interest shall execute proper instruments acknowledging cease to accrue on the same); provided that principal amount represented thereby. When there are in the following Bond Fund and/or Credit Facility Fund funds or securities as described in the preceding paragraph as are sufficient to pay the Purchase Price, principal of, premium, if any, and interest on, some but not all of the Bonds in full as and when such amounts become due and the other conditions in the preceding paragraph have been met with respect to such Bonds, the particular Bonds (or portions thereof) for which such provision for payment shall have been satisfied:
considered made shall be selected by lot by the Trustee (aor, if the Bonds are in the Book-Entry Only System, in such manner as DTC shall determine) and thereupon the Company has irrevocably deposited Trustee and the Issuer shall take similar action to release the security interests created by this Agreement in respect of such Bonds (except in such funds or securities and investments thereof), subject however to compliance with the applicable conditions set forth above. Notwithstanding the foregoing, those provisions relating to the maturity of Bonds, interest payments and dates thereof, the tender of Bonds for purchase and the Trustee's remedies with respect thereto, and provisions relating to exchange, transfer and registration of Bonds, replacement and cancellation of Bonds, the holding of moneys in trust with and the duties of the Trustee as trust funds solely for the benefit in connection with all of the Holders foregoing and the fees, expenses and indemnities of the Securities of such series, for payment Trustee and the Issuer and any obligation of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered Borrower to make rebate payments to the Trustee) without consideration of any reinvestment United States, shall remain in full force and after payment of all federal, state effect and local taxes or other charges and assessments in respect thereof payable by shall be binding upon the Trustee, to pay the Issuer, the Borrower and the Bondowners notwithstanding the release and discharge of this Agreement until the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would Bonds have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described actually paid in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivefull.
Appears in 1 contract
Samples: Loan and Trust Agreement (Datum Inc)
Defeasance. Except as provided below(a) The provisions of Sections 1402 and 1403 of the Senior Indenture, together with the Company will other provisions of Article XIV of the Senior Indenture, shall be deemed applicable to have paid the Notes. The provisions of Section 1403 of the Senior Indenture shall apply to the covenants set forth in Section 2.4 of this Supplemental Indenture and to those covenants specified in Section 1403 of the Senior Indenture.
(b) The Company, at its option (i) will be discharged from any and all obligations in respect to the Notes (except for certain obligations to register the transfer or exchange of the Securities Notes, to replace destroyed, stolen, lost or mutilated Notes, and to maintain an office or agency in respect of any series the Notes and hold moneys for payment in trust) or (ii) will be released from its obligations to comply with the provisions of this Section 2.4 hereof, and the occurrence of an Event of Default pursuant to Section 501 of the Senior Indenture will shall no longer be an Event of Default if, in effect either case, the Company irrevocably deposits with respect to the Securities of such series (and the Trustee, at the expense in trust, money or United States Government Obligations that through payment of interest thereon and principal thereof in accordance with their terms will provide money in an amount sufficient to pay all of the Companyprincipal of (and premium, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(aif any) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and any interest on the Securities Notes on the dates such payments are due (which may include one or more Redemption Dates designated by the Company) in accordance with the terms of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;Notes.
(c) Such a trust may only be established if, among other things, (i) no Event of Default or event which with respect to the Securities giving of such series notice or lapse of time, or both, would become an Event of Default under the Indenture shall have occurred and be continuing on the date of such deposit;
, (dii) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders holders of the Securities Notes of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided will not recognize gain or loss for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.United States Federal income tax
Appears in 1 contract
Defeasance. Except as provided below, the Company The Issuer will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and series, the provisions of this Indenture will will, except as provided below, no longer be in effect with respect to the Securities of such series (and series, the Trustee, at the expense of the CompanyIssuer, shall execute proper instruments acknowledging the same)same and the Securities of any such series will no longer be Outstanding pursuant to this Indenture; provided that the following conditions shall have been satisfied:
(aA) the Company Issuer has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal principal of and accrued interest on the outstanding Outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bB) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Issuer is a party or by which it is bound;
(cC) no event which, with the giving of 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;
(dD) the Company Issuer shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the CompanyIssuer's exercise of its option under this Section 8.02 9.2 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 option had not occurred been exercised or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(eE) the Company Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.2 of the Securities of such series have been complied with. The CompanyIssuer's obligations in Sections 2.02 through 2.122.2, 4.022.5, 7.072.6, 7.08 2.7, 2.8, 2.9, 2.10, 3.2, 3.4, 5.6, 5.9 and 8.05 9.5 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the CompanyIssuer's obligations in Sections 7.07 5.6 and 8.05 9.5 shall survive.
Appears in 1 contract
Defeasance. Except as provided below18.2.1 The Issuer may, the Company will be deemed at its option and at any time, elect to have paid and will be certain obligations discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect (see Clause 18.2.2) upon complying with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:(“Covenant Defeasance”);
(a) the Company has Issuer shall have irrevocably deposited in trust with pledged to the Bond Trustee as trust funds solely for the benefit of the Holders of Bondholders cash or government obligations acceptable by the Securities of Bond Trustee (the “Defeasance Pledge”) in such series, amounts as will be sufficient for the payment of the Principal of principal and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered Outstanding Bonds to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beMaturity Date;
(b) such deposit will not result in the Issuer shall, if required by the Bond Trustee, provide a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect legal opinion reasonable acceptable to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Bond Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series Bondholders will not recognize income, gain or loss for federal income tax purposes (under US federal or Norwegian, if applicable) as a result of the Company's exercise of its option under this Section 8.02 Defeasance Pledge and Covenant Defeasance, and will be subject to federal such 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 the Defeasance Pledge had not occurred;
(c) no Event of Default shall have occurred or (y) an Opinion and be continuing on the date of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders establishment of the Securities Defeasance Pledge, or insofar as Events of such series have a valid security interest Default from bankruptcy or insolvency events are concerned, at any time in the trust funds subject to no prior liens under period ending on the UCC; and181st day after the date of establishment of the Defeasance Pledge;
(ed) neither the Company has delivered to Defeasance Pledge nor the Trustee an Officers' Certificate and an Opinion Covenant Defeasance results in a breach or violation of Counselany material agreement or instrument binding upon the Issuer, in each case stating that all conditions precedent provided for herein relating to or the defeasance contemplated by this Section 8.02 certificate of association or partnership agreement governing the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.Issuer;
Appears in 1 contract
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, 54 61 gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.
Appears in 1 contract
Samples: Indenture (Amerada Hess Corp)
Defeasance. Except SECTION 11.01. If and when the principal of, and the premium, if any, and the interest on, all the Securities outstanding hereunder and all other sums due hereunder shall have been well and truly paid at the times and in the manner therein and herein expressed, this Indenture shall cease and determine, and, at the written request of the Company, accompanied by the Officers' Certificate and Opinion of Counsel required by Section 14.03, and upon proof being given to the reasonable satisfaction of the Trustee that all the Securities have been paid or satisfied and upon payment of the costs, charges and expenses incurred or to be incurred by the Trustee in relation thereto or in carrying out the provisions of this Indenture, the Trustee shall cancel this Indenture and execute and deliver to the company such instruments as provided belowshall be requisite to evidence the satisfaction hereof.
SECTION 11.02. If, at any time after the date hereof, the Company shall deposit with the Trustee, in trust for the benefit of the holders thereof, (i) funds sufficient to pay, or (ii) such amount of direct obligations of the United States of America as will or will together with the income thereon without consideration of any reinvestment thereof be deemed sufficient to have paid pay, all sums due for principal of, premium, if any, and will be discharged from any and all obligations in respect of interest on the Securities of any series a particular series, as they shall become due from time to time, and shall pay all costs, charges and expenses incurred or to be incurred by the Trustee in relation thereto or in carrying out the provisions of this Indenture will no longer in relation thereto, this Indenture shall cease to be in of further effect with respect to the Securities of such series (except as to (i) rights of registration of transfer, substitution and the Trustee, at the expense exchange of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment (ii) rights of the Principal holders to receive payments of principal of, premium, if any, and interest on the Securities of such seriesseries as they shall become due from time to time and other rights, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely duties and obligations of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered Securityholders as beneficiaries hereof with respect to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by amounts so deposited with the Trustee, to pay and discharge (iii) the Principal rights, obligations and immunities of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption Trustee hereunder (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to purposes the Securities of such series shall have occurred be deemed outstanding)), and be continuing the Trustee, on the date written request of such deposit;
(d) the Company shall have delivered to Company, accompanied by the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service Officers' Certificate and Opinion of Counsel required by Section 14.03, and an Opinion of Counsel to the effect that the Holders holders of the Securities of such series will not recognize income, gain or loss for federal Federal income tax purposes as a result 51 60 of the Company's exercise of its option action under this Section 8.02 11.02 and will be subject to federal Federal income tax on in the same amount and amount, in the same manner and at the same times as would have been the case if such deposit and defeasance action had not occurred or (y) an Opinion of Counsel been taken, shall execute and deliver to the same effect Company such instruments as shall be requisite to evidence the ruling described in clause (x) above and (ii) an Opinion satisfaction thereof with respect to Securities of Counsel such series. The Trustee shall apply the moneys so deposited solely to the effect that payment to the Holders holders of the Securities of such series of all sums due thereon for principal, premium, if any, and interest, and the Trustee shall have a valid security no claim for itself, for fees, expenses or otherwise, to such moneys so deposited.
SECTION 11.03. Neither the Trustee nor any other paying agent shall be required to pay interest in on any moneys deposited pursuant to the trust funds subject to no prior liens under the UCC; and
(e) provisions of this Indenture, except such as it shall agree with the Company has delivered to pay thereon. Any moneys so deposited for the Trustee an Officers' Certificate payment of the principal of, premium, if any, of interest on the Securities of any series and an Opinion remaining unclaimed for three years after the date of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 maturity of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to or the date fixed for the redemption of all the Securities of such series at the time outstanding, as the case may be, shall survive until be repaid by the Trustee or such other paying agent to the Company upon its written request and thereafter, anything in this Indenture to the contrary notwithstanding, any rights of the holders of Securities of such series in respect of which such moneys shall have been deposited shall be enforceable only against the Company, and all liability of the Trustee or such other paying agent with respect to such moneys shall thereafter cease. Subject to the provisions of the foregoing paragraph, any moneys which at any time shall be deposited by the Company or on its behalf with the Trustee or any other paying agent for the purpose of paying the principal of, premium, if any, and interest on any of the Securities shall be and are hereby assigned, transferred and set over to the Trustee or such other paying agent in trust for the respective holders of the Securities for the purpose for which such moneys shall have been deposited; but such moneys need not be segregated from other funds except to the extent required by law. ARTICLE TWELVE IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 12.01. No recourse shall be had for the paying of the principal of, or the premium, if any, or interest on, any Security or for any claim based thereon or otherwise in respect thereof or of the indebtedness represented thereby, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, officer, director or employee, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any 52 61 successor corporation, whether by virtue of any constitutional provision, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly agreed and understood that this Indenture and the Securities are solely corporate obligations, and that no longer outstanding. Thereafterpersonal liability whatsoever shall attach to, only or be incurred by, any incorporator, stockholder, officer, director or employee, as such, past, present or future, of the Company's obligations Company or of any successor corporation, either directly or through the Company or any successor corporation, because of the incurring of the indebtedness hereby authorized or under or by reason of any of the obligations, covenants, promises or agreements contained in Sections 7.07 this Indenture or in any of the Securities or to be implied herefrom or therefrom, and 8.05 shall survivethat all liability, if any, of that character against every such incorporator, stockholder, officer, director and employee is, by the acceptance of the Securities and as a condition of, and as part of the consideration for, the execution of this Indenture and the issue of the Securities expressly waived and released.
Appears in 1 contract
Samples: Indenture (Finova Capital Corp)
Defeasance. Except as provided below, The Issuer shall have the Company will right (the “defeasance option”) to be deemed to have paid and will be discharged released from any and all obligations in respect of the Securities of any series and the provisions terms of this Indenture will no longer be in effect with respect relating to the Securities outstanding Notes of such series (and a Series specified by the Issuer in a written notice to the Trustee, and upon receipt of such notice the Trustee shall, at the request and expense of the CompanyIssuer, execute and deliver to the Issuer such deeds and other instruments as shall execute proper instruments acknowledging be necessary to release the same); provided that Issuer from the following conditions shall have been satisfiedterms of this Indenture relating to the Notes of the Series specified in such notice, subject to the following:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company Issuer shall have delivered to the Trustee evidence that the Issuer has
(i) either (x) a ruling directed deposited sufficient funds for payment of all principal, interest and Premium and other amounts due or to become due on the Notes of such Series to the Stated Maturity thereof;
(ii) deposited funds or made provision for the payment of all remuneration and expenses of the Trustee received from as provided for hereunder to carry out its duties under this Indenture in respect of the Internal Revenue Service Notes of such Series; and
(iii) deposited funds for the payment of taxes arising with respect to all deposited funds or other provision for payment in respect of the Notes of such Series in each case irrevocably, pursuant to the effect terms of a trust agreement in form and substance satisfactory to the Issuer and the Trustee, provided that the Holders of the Securities of any such series will not recognize income, gain or loss for federal income tax purposes as taxes are solely a result of the Company's Issuer exercising the defeasance option;
(b) no Event of Default shall result from the Issuer’s exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; andoption;
(ec) the Company has Issuer shall have delivered to the Trustee an Officers' Officer’s Certificate stating that the deposit referred to in Section 9.6(a) was not made by the Issuer with the intent of preferring the Noteholders over the other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others; and
(d) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion opinion of Counsel, in each case Counsel as required pursuant to Sections 13.13 and 13.14 stating that all conditions precedent provided for herein or relating to the defeasance contemplated by this Section 8.02 of the Securities exercise of such series defeasance option have been complied with. The Company's obligations Issuer shall be deemed to have made due provision for the depositing of funds if it deposits or causes to be deposited with the Trustee under the terms of an irrevocable trust agreement in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 form and 8.05 with respect substance satisfactory to the Issuer and the Trustee (each acting reasonably), solely for the benefit of the Noteholders, money or Securities denominated in the currency in which principal is payable constituting direct obligations of Canada or an agency or instrumentality of Canada or a province of Canada whose securities are rated at least AA(low) or AA- by DBRS or S&P, respectively, or their successors, or Authorized Investments, as directed by Issuer, which will be sufficient, in the opinion of a firm of independent chartered accountants or an investment dealer acting reasonably and acceptable to the Issuer and the Trustee, to provide for payment in full of the Notes and all other amounts from time to time due and owing under this Indenture which pertain to the Notes. The Trustee shall hold in trust all money or Securities deposited with it pursuant to this Section 9.6 and shall apply the deposited money and the money derived from such series Securities in accordance with this Indenture to the payment of principal, interest and Premium on the Notes and, as applicable, other amounts. If the Trustee is unable to apply any money or Securities in accordance with this Section 9.6 by reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Notes shall survive be revived and reinstated as though no money or Securities had been deposited pursuant to this Section 9.6 until such time as the Trustee is permitted to apply all such money or Securities are no longer outstanding. Thereafterin accordance with this Section 9.6, only provided that if the Company's obligations Issuer has made any payment in Sections 7.07 and 8.05 respect of principal, interest or Premium on Notes or, as applicable, other amounts because of the reinstatement of its obligations, the Issuer shall survivebe subrogated to the rights of the Noteholders to receive such payment from the money or Securities held by the Trustee.
Appears in 1 contract
Samples: Trust Indenture (Tim Hortons Inc.)
Defeasance. Except as provided below(a) The provisions of Sections 1402 and 1403 of the Senior Indenture, together with the Company will other provisions of Article XIV of the Senior Indenture, shall be deemed applicable to have paid the Notes. The provisions of Section 1403 of the Senior Indenture shall apply to the covenants set forth in Section 2.4 of this Supplemental Indenture and to those covenants specified in Section 1403 of the Senior Indenture.
(b) The Company, at its option (i) will be discharged from any and all obligations in respect to the Notes (except for certain obligations to register the transfer or exchange of the Securities Notes, to replace destroyed, stolen, lost or mutilated Notes, and to maintain an office or agency in respect of any series the Notes and hold moneys for payment in trust) or (ii) will be released from its obligations to comply with the provisions of this Section 2.4 hereof, and the occurrence of an Event of Default pursuant to Section 501 of the Senior Indenture will shall no longer be an Event of Default if, in effect either case, the Company irrevocably deposits with respect to the Securities of such series (and the Trustee, at the expense in trust, money or United States Government Obligations that through payment of interest thereon and principal thereof in accordance with their terms will provide money in an amount sufficient to pay all of the Companyprincipal of (and premium, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(aif any) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and any interest on the Securities Notes on the dates such payments are due (which may include one or more Redemption Dates designated by the Company) in accordance with the terms of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;Notes.
(c) Such a trust may only be established if, among other things, (i) no Event of Default or event which with respect to the Securities giving of such series notice or lapse of time, or both, would become an Event of Default under the Indenture shall have occurred and be continuing on the date of such deposit;
, (dii) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders holders of the Securities Notes of such series have will not recognize gain or loss for United States Federal income tax purposes as a valid security interest result of such deposit or defeasance and will be subject to United Stated Federal income tax in the trust funds subject same manner as if such defeasance had not occurred. In the event the Company omits to no prior liens comply with its remaining obligations under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the Indenture after a defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 Indenture with respect to the Securities Notes and the Notes are declared due and payable because of the occurrence of any undefeased Event of Default, the amount of money and United States Government Obligations on deposit with the Trustee may be insufficient to pay amounts due on the Notes at the time of the acceleration resulting from such series shall survive until Event of Default. However, the Company will remain liable in respect to such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivepayments.
Appears in 1 contract
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from On any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect date prior to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that Early Amortization Period on which the following conditions shall have been satisfied:
: (ai) the Company Transferor has irrevocably deposited (x) in trust with the Trustee Principal Funding Account, an amount equal to the outstanding principal balance of the Class A Certificates, which amount will be invested in Eligible Investments and (y) in the Reserve Account an amount equal to or greater than the Covered Amount, as trust funds solely estimated by the Transferor, for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on period from the date of such deposit;
(d) the Company shall have delivered deposit to the Trustee (i) either (x) a ruling directed to Principal Funding Account through the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and Class A Expected Final Payment Date; (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company Transferor has delivered to the Trustee an Officers' Certificate opinion of counsel to the effect that such deposit and termination of obligations as described below will not result in the Trust being required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and an Opinion opinion of Counselcounsel to the effect that following such deposit none of the Trust, in each case the Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation; (iii) the Transferor has delivered to the Trustee a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit and termination of its obligations will not constitute an Early Amortization Event or any event that, with the giving of notice or the lapse of time, would constitute an Early Amortization Event or a Series 1997-1 Early Amortization Event to occur; and (iv) the Rating Agency Condition shall have been satisfied; then, the Series 1997-1 Certificates will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07other Trust assets ("Defeasance"), 7.08 and 8.05 with respect the Investor Percentages applicable to the Securities allocation to the Series 1997-1 Certificateholders of such series shall survive until such Securities are no longer outstandingCollections of Principal Receivables, Finance Charge Receivables and Defaulted Receivables will be reduced to zero. ThereafterUpon the satisfaction of the foregoing conditions, only the Company's obligations in Sections 7.07 and 8.05 shall surviveClass B Invested Amount will be reduced to zero.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Dayton Hudson Receivables Corp)
Defeasance. Except as provided below, Provided that the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect same has been duly authorized with respect to the Securities of such a particular series (and pursuant to Section 3.01(11), if, at any time after the date hereof, the Issuer shall deposit with the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such seriesthereof, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such i) funds consist solely of moneysufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay, or (ii) U.S. Government Obligations (as defined below) as will, or will together with the income thereon without consideration of any reinvestment thereof, be sufficient to pay all sums due for the principal of (and after payment premium, if any) and interest, if any, on the Securities of such series, as they shall become due from time to time, and shall pay all federalcosts, state and local taxes or other charges and assessments in respect thereof payable expenses incurred or to be incurred by the TrusteeTrustee in relation thereto or in carrying out the provisions of this Indenture, this Indenture shall cease to pay and discharge the Principal be of and accrued interest on the outstanding further effect with respect to Securities of such series (except as to maturity (i) the Issuer's or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)a Guarantor's obligations, as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to Securities of such series under Sections 3.05, 3.06 and 11.02, (ii) rights of Holders to receive payments of the principal of (and premium, if any) and interest, if any, on the Securities of such series as they shall become due from time to time and other rights, duties and obligations of Holders as beneficiaries hereof with respect to the amounts so deposited with the Trustee, and (iii) the rights, obligations and immunities of the Trustee hereunder (for which purposes the Securities of such series shall have occurred be deemed outstanding)), and be continuing the Trustee, on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders written request of the Securities of such series will not recognize incomeIssuer or a Guarantor, gain or loss for federal income tax purposes as a result of accompanied by the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel required by Section 1.02, in each case stating that all conditions precedent provided for herein relating shall execute and deliver to the defeasance contemplated by this Section 8.02 of Issuer or a Guarantor such instruments as shall be requisite to evidence the satisfaction thereof with respect to Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveseries.
Appears in 1 contract
Defeasance. Except as provided below18.2.1 The Issuer may, the Company will be deemed at its option and at any time, elect to have paid and will be certain obligations discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect (see Clause 18.2.2) upon complying with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:(“Covenant Defeasance”);
(a) the Company has Issuer shall have irrevocably deposited in trust with pledged to the Bond Trustee as trust funds solely for the benefit of the Holders of Bondholders cash or government obligations accepted by the Securities of Bond Trustee ('the “Defeasance Pledce”) in such series, amounts as will be sufficient for the payment of the Principal principal (including if applicable premium payable upon exercise of a Call Option) and interest on the Securities of such series, money Outstanding Bonds to Maturity Date (or U.S. Government Obligations or redemption upon a combination thereof sufficient (unless such funds consist solely of money, in the opinion exercise of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trusteenotified Call Option), as the case may be;
(b) such deposit will not result in the Issuer shall, if required by the Bond Trustee, provide a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect legal opinion reasonable acceptable to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Bond Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series Bondholders will not recognize income, gain or loss for federal income tax purposes (hereunder US federal or Norwegian, if applicable) as a result of the Company's exercise of its option under this Section 8.02 Defeasance Pledge and Covenant Defeasance, and will be subject to federal such 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 the Defeasance Pledge had not occurred;
(c) no Event of Default shall have occurred or (y) an Opinion and be continuing on the date of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders establishment of the Securities Defeasance Pledge, or insofar as Events of such series have a valid security interest Default from bankruptcy or insolvency events are concerned, at any time in the trust funds subject to no prior liens under period ending on the UCC; and181st day after the date of establishment of the pledge;
(d) neither the Defeasance Pledge nor the Covenant Defeasance results in a breach or violation of any material agreement or instrument binding upon the Issuer, or the articles of association or other corporate documents governing the Issuer;
(e) the Company has Issuer shall have delivered to the Bond Trustee an Officers' Certificate a certificate signed by its Chief Executive Officer that the Defeasance Pledge was not made by the Issuer with the intent of preferring the Bondholders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(f) the Issuer shall have delivered to the Bond Trustee any certificate or legal opinion reasonably required regarding the Covenant Defeasance or Defeasance Pledge (including certificate from its Chief Executive Officer and an Opinion of Counsel, in each case stating a legal opinion from its legal counsel to the effect that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series Covenant Defeasance have been complied with. The Company's obligations ; and that the Defeasance Pledge (i) will not be subject to any rights of creditors of the Issuer, (ii) will constitute a valid, perfected and enforceable security interest in Sections 2.02 through 2.12favour of the Bond Trustee for the benefit of the Bondholders, 4.02and (iii) will, 7.07after the 181st day following the establishment, 7.08 the funds and 8.05 with respect assets so pledged will not be subject to the Securities effects of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally under the laws of the jurisdiction where the Defeasance Pledge was established and the corporate domicile of the Issuer.
18.2.2 Upon the exercise by the Issuer of its option under Clause 18.2.1;
(c) the Issuer shall be released from its obligations under all provisions in Clause 13, except 13.2.1 (a), (e), (h) and (i). the Issuer shall not (and shall ensure that all Group Companies shall not) take any actions that may cause the value of the Security Interest created by this Covenant Defeasance to be reduced, and shall at the request of the Bond Trustee execute, or cause to be executed, such series further documentation and perform such other acts as the Bond Trustee may reasonably require in order for the Security Interests to remain valid, enforceable and perfected by the Bond Trustee for the account of the Bondholders; any Security Interests other than the Defeasance Pledge shall survive until be discharged, and the Bond Trustee shall take all steps reasonably possible for it to cause such Securities are no longer outstandingdischarge to be effected, by way of deletion of the relevant Security Document from the relevant register, notice to third parties or as otherwise required;
(d) all other provisions of the Bond Agreement (except (a) remain fully in force without any modifications. Thereafter(c) above) shall
18.2.3 All moneys amount covered by the Defeasance Pledge shall be applied by the Bond Trustee, only in accordance with the Company's obligations in Sections 7.07 provisions of this Bond Agreement, to the payment to the Bondholders of all sums due to them under this Bond Agreement on the due date thereof. Any excess funds not required for the payment of principal, premium and 8.05 interest to the Bondholders (including any expenses, fees etc. due to the Bond Trustee hereunder) shall survivebe returned to the Issuer.
Appears in 1 contract
Samples: Amendment and Restatement Agreement
Defeasance. Except as provided below, the Company Issuer will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the CompanyIssuer, shall execute proper instruments in form and substance satisfactory to the Issuer and the Trustee acknowledging the same); provided that ) if the following conditions shall have been satisfied:
(a) the Company Issuer has irrevocably deposited in trust with the Trustee as trust funds specifically pledged as security for, and dedicated solely for the benefit of the to, Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Issuer is a party or by which it is bound;
(c) no default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company Issuer shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal Federal income tax purposes as a result of the Company's Issuer’s exercise of its option under this Section 8.02 9.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change in law and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company Issuer has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.02 of the Securities of such series have been complied with. The Company's Issuer’s obligations in Sections 2.02 Section 2.03 through 2.122.11, 4.023.02, 7.075.06, 7.08 5.09 and 8.05 9.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's Issuer’s obligations in Sections 7.07 Section 5.06 and 8.05 9.05 shall survive.
Appears in 1 contract
Samples: Indenture (Loop Media, Inc.)
Defeasance. Except The indenture will permit us to terminate all our respective obligations under the indenture as provided belowthey relate to any particular series of debt securities, other than the Company will be deemed obligation to have paid pay interest, if any, on and will be discharged from any and all obligations in respect the principal of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities debt securities of such series (and the Trusteecertain other obligations, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited any time by: • depositing in trust with the Trustee as trustee, under an irrevocable trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such seriesagreement, money or U.S. Government Obligations or a combination thereof government obligations in an amount sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal principal of and accrued interest interest, if any, on the outstanding Securities debt securities of such series to their maturity or earlier redemption (irrevocably provided for under arrangements satisfactory redemption; and • complying with other conditions, including delivery to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities trustee of such series shall have occurred and be continuing on the date an opinion of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service counsel to the effect that the Holders of the Securities of such series holders will not recognize income, gain or loss for federal income tax purposes as a result of the Company's our exercise of its option under this Section 8.02 such right 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 otherwise. The indenture will also permit us to terminate all of our respective obligations under the indenture as they relate to any particular series of debt securities, including the obligations to pay interest, if any, on and the principal of the debt securities of such deposit series and defeasance had not occurred certain other obligations, at any time by: • depositing in trust with the trustee, under an irrevocable trust agreement, money or (y) government obligations in an Opinion amount sufficient to pay principal and interest, if any, on the debt securities of Counsel such series to their maturity or redemption; and • complying with other conditions, including delivery to the same effect as the ruling described in clause (x) above and (ii) trustee of an Opinion opinion of Counsel counsel to the effect that (A) we have received from, or there has been published by, the Holders Internal Revenue Service a ruling, or (B) since the date such series of debt securities were originally issued, there has been a change in the Securities applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall state that, holders will not recognize income, gain or loss for federal income tax purposes as a result of our exercise of such right 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 otherwise. In addition, the indenture will permit us to terminate substantially all our respective obligations under the indenture as they relate to a particular series of debt securities by depositing with the trustee money or government obligations sufficient to pay all principal and interest on such series at its maturity or redemption date if the debt securities of such series have a valid security interest in the trust funds subject will become due and payable at maturity within one year or are to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided be called for herein relating to the defeasance contemplated by this Section 8.02 redemption within one year of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivedeposit.
Appears in 1 contract
Samples: At Market Issuance Sales Agreement
Defeasance. Except as provided below, On the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company has irrevocably Transferor shall have deposited (x) in trust with the Trustee as trust funds solely for Principal Funding Account, an amount such that the benefit amount on deposit in the Principal Funding Account following such deposit is equal to the Class A Outstanding Principal Amount, (y) in the Principal Account, an amount equal to the sum of the Holders of Class B Outstanding Principal Balance and Excess Collateral Outstanding Principal Balance and (z) in the Securities of such seriesAccumulation Period Reserve Account, for payment of an amount equal to or greater than the Principal of accrued and unpaid interest on the Investor Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in through the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to day preceding the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest date on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
Defeasance occurs; (c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dii) the Company Transferor shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (iia) an Opinion of Counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
1940, as amended, (eb) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel to the effect that following such deposit none of the Trust, in each case the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iii) a Ratings Event will not occur, the Series 2000-2 Securities will no longer be entitled to the defeasance contemplated by this Section 8.02 security interest of the Securities of such series have been complied with. The Company's obligations Trust in Sections 2.02 through 2.12the Receivables and, 4.02except those set forth in clause (i) above, 7.07, 7.08 other Trust assets and 8.05 with respect the percentages applicable to the Securities allocation to the Series 2000-2 Securityholders of such series Principal Collections, Finance Charge Collections and Defaulted Receivables will be reduced to zero.
Section 7. Article V of the Agreement. Article V of the Agreement shall survive until such Securities are no longer outstanding. Thereafter, read in its entirety as follows and shall be applicable only to the Company's obligations in Sections 7.07 and 8.05 shall survive.Series 2000-2 Securities:
Appears in 1 contract
Defeasance. Except as provided belowThe Owner Trustee may, at any time, defease the Company will interest of the Indenture Trustee in the Indenture Estate in whole, but not in part, through the deposit with the Defeasance Trustee, in accordance with the provisions of this Section 10.05, of cash and/or Government Obligations; provided, however, that such defeasance shall not be deemed to have paid and will be discharged from any and all obligations applicable in respect of the Securities Series SWA 1995 Trust N397SW-I Certificates. Such deposit shall be made pursuant to a declaration or other appropriate instrument of any series trust satisfactory in form and substance to the Defeasance Trustee and the Indenture Trustee; such deposit shall be absolute and irrevocable and the instrument of trust shall expressly provide that the Owner Trustee shall have no further title to or interest in or power to direct the use or application of the cash and/or Government Obligations so deposited or any of the proceeds arising therefrom; such instrument shall state that the trust created thereby and the cash and/or Government Obligations deposited pursuant thereto are for the sole and exclusive benefit of the Holders and shall expressly provide that the Defeasance Trustee shall apply such cash and payments of principal and/or interest on such Government Obligations to, and only to, the punctual payment of the principal and interest on the Certificates as and when such payments become due (such declaration or instrument to contain appropriate provisions for the recording of this transfers of Certificates and the names and addresses of the Holders); and the Owner Trustee shall agree to pay, as the same shall become due and payable, all fees, costs and charges of the Defeasance Trustee under such instrument of trust, including those which may become payable after the date the conditions hereinbelow specified have been met. Upon compliance with the following conditions, and provided, that no Indenture will no longer Event of Default or Indenture Default shall have occurred and be continuing on a date 91 days after the date of the deposit of Government Obligations and/or cash with the Defeasance Trustee as provided in effect Subsection A below, the Owner Trustee's obligations with respect to the Securities Certificates will be discharged and this Indenture shall terminate as provided in Section 10.01:
A. the Owner Trustee shall have deposited with the Defeasance Trustee absolutely and irrevocably (irrespective of such series (whether the conditions in Subsections B, C, D and the Trustee, at the expense E of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall this Section 10.05 have been satisfied:)
(a1) cash and/or (2) Government Obligations which through the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of principal and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by in accordance with their terms, without any reinvestment or further investment of the Trusteeprincipal of or interest earned on such Government Obligations, will absolutely and unconditionally provide in any and all circumstances not later than one day before each Payment Date an amount sufficient to pay and discharge the Principal payment of principal and accrued interest to be due and payable on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may bePayment Date;
(b) such deposit will not result in a breach B. no Indenture Event of Default or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company deposit of cash and/or Government Obligations as contemplated hereby; TRUST INDENTURE AND SECURITY AGREEMENT [N397SW] -52- 59 C. the Owner Trustee shall have delivered to the Defeasance Trustee (i) either (x) a ruling directed and to the Trustee received from Certificate Holders written confirmation by a nationally recognized firm of independent public accountants (other than the Internal Revenue Service accounting firm then serving as Shawmut Bank Connecticut, National Association's or the Owner Participant's regular auditors) selected by the Owner Trustee, the form and substance of which confirmation and the identity of such accounting firm shall be satisfactory to the effect Indenture Trustee, that the Holders Government Obligations deposited for payment of the Securities Certificates, together with any cash deposited by the Owner Trustee, are sufficient to satisfy the requirements of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.Subsection A hereof;
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Southwest Airlines Co)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(ai) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(ciii) no Default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(div) the Company shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change in law and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(ev) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survive.
Appears in 1 contract
Defeasance. Except as provided below, The Securities may be defeased in whole or in part on the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) there shall have been deposited (x) in the Company has irrevocably Principal Funding Account, an amount such that the amount on deposit in the Principal Funding Account following such deposit is equal to the sum of the outstanding principal amount of the Class A Securities, the outstanding principal amount of the Class B Securities and the outstanding principal amount of the Collateral Interest so defeased, and (y) in the Reserve Account, an amount equal to or greater than the anticipated excess of the Base Rate over the investment earnings on the amount deposited in trust with the Trustee Principal Funding Account pursuant to clause (x) of this Section 7.6, as trust funds solely estimated by the Transferor, for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on period from the date of such deposit;
deposit to the Principal Funding Account through the June 2003 Distribution Date; (dii) the Company Transferor shall have delivered to the Trustee (ia) either (x) a ruling directed to the Trustee received from the Internal Revenue Service an opinion of counsel to the effect that such deposit will not result in the Holders Trust being required to register as an "investment company" within the meaning of the Securities Investment Company Act of such series will not recognize income1940, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or amended, (yb) an Opinion opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel counsel to the effect that the Holders following such deposit none of the Trust, the Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that the Transferor reasonably believes that such deposits will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, would constitute a Pay Out Event, to occur; (iii) the Rating Agency Condition shall have been satisfied in connection with such events; and (iv) the amounts deposited into the Principal Funding Account and the Reserve Account pursuant to clauses (x) and (y) of this Section 7.6 are proceeds from the issuance of a Series of Investor Securities. If the Securities of such series have a valid been defeased in whole, the Series 1998-3 Securities will no longer be entitled to the security interest of the Trust in the trust funds subject to no prior liens under Receivables and, except those set forth in clause (i) above, other Trust assets and the UCC; and
(e) the Company has delivered percentages applicable to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating allocation to the defeasance contemplated by this Section 8.02 Series 1998-3 Securityholders of Collections of Principal Receivables, Collections of Finance Charge Receivables and Collections of Defaulted Receivables will be reduced to zero. Upon the satisfaction of the Securities of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12foregoing conditions, 4.02, 7.07, 7.08 and 8.05 with respect the Class D Invested Amount will be reduced to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall survivezero.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Partners First Credit Card Master Trust)
Defeasance. Except as provided belowWhen there are in the Bond Fund sufficient funds, or non-callable and non-prepayable obligations issued by, or the full and timely payment of which are guaranteed by, the Company United States of America, in such principal amount, bearing interest at such rates and with such maturities as will be deemed provide, without reinvestment, sufficient amounts to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trusteepay principal or Purchase Price of, at the expense of the Companypremium, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such seriesif any, for payment of the Principal of and interest on the Securities of Bonds as and when such seriesamounts become due and, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered prior to the Trustee) without consideration of any reinvestment and after payment of all federalFixed Rate Conversion Date or change to the Fixed Rate, state and local taxes or other charges and assessments in respect thereof payable by the Trusteeas applicable, to pay the Purchase Price thereof whenever the same may be payable, as determined through a verification report or computation, which may be prepared by the Company, and when all the rights hereunder of the Authority and the Trustee have been provided for (1) the Bondowners will cease to be entitled to any right, benefit or security under this Agreement except the right to receive payment of the funds deposited and held for payment and other rights set forth below or which by their nature cannot be satisfied prior to or simultaneously with termination of the lien hereof, (2) the security interests created by this Agreement (except in such funds and investments) shall terminate, and (3) the Authority and the Trustee shall execute and deliver such instruments as may be necessary to discharge the Principal of lien and accrued interest on the outstanding Securities security interests created hereunder; provided, however, that, if within ninety (90) days of such series deposit, the Bonds are not to be redeemed in full prior to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to paid in full at maturity, the Trustee), as Trustee and the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series Bond Insurer shall have occurred and be continuing received on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders deposit an opinion of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Bond Counsel to the effect that such deposit and the Holders investment thereof will not affect the exclusion of interest on the Bonds from gross income of the Securities owners thereof for federal income tax purposes; and provided further that if any Bonds are to be redeemed prior to the maturity thereof, such Bonds shall have been duly called for redemption or irrevocable instructions for such a call shall have been given to the Trustee. Upon such defeasance, the funds and investments required to pay or redeem the Bonds in full shall be irrevocably set aside for such purpose. The Trustee shall cause to be mailed to all Bondowners within fifteen (15) days of the conditions of this section being met in the manner herein specified for redemption of Bonds a notice stating that such conditions have been met and that the lien of this Agreement has been discharged, and, if the Bonds are to be redeemed prior to maturity, specifying the date of redemption and the redemption price. Any funds or property held by the Trustee for payment of the Bonds under this section and not required for such payment shall (unless there is an Event of Default hereunder, in which case they shall be applied as provided in Section 604), after satisfaction of all the rights of the Authority and the Trustee, and payment of the rebate, if any, due to the United States of America under IRC ss.148(f), and upon such indemnification, if any, as the Authority or the Trustee may reasonably require, be distributed to the Company. If Bonds are not presented for final payment when due and moneys are available in the hands of the Trustee therefor, the Trustee shall, without liability for interest thereon, continue to hold the moneys held for that purpose subject to Subsection 305(c), and interest shall cease to accrue on the principal amount represented thereby. When there are in the Bond Fund funds or securities as described in the preceding paragraph as are sufficient to pay principal or Purchase Price of, premium, if any, and interest on, some but not all of the Bonds in full as and when such amounts become due and all of the other conditions in the preceding paragraph have been met with respect to such Bonds, the particular Bonds (or portions thereof) for which such provision for payment shall have been considered made shall be selected by lot by the Trustee (or, if the Bonds are then registered to CEDE & CO. and the Book-Entry Only System is then in effect, by The Depository Trust Company) and thereupon the Trustee and the Authority shall take similar action to release the security interests created by this Agreement in respect of such series have a valid security interest Bonds (except in such funds or securities and investments thereon), subject however to compliance with the applicable conditions set forth in the trust funds subject to no prior liens under provisos above. Notwithstanding the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counselforegoing, in each case stating that all conditions precedent provided for herein those provisions relating to the defeasance contemplated by maturity of Bonds, interest payments and dates thereof and the Trustee's remedies with respect thereto, and provisions relating to exchange, transfer and registration of Bonds, replacement and cancellation of Bonds, the holding of moneys in trust and the duties of the Trustee in connection with all of the foregoing and the fees, expenses and indemnities of the Trustee and the Authority, shall remain in full force and effect and shall be binding upon the Trustee, the Authority, the Company and the Bondowners notwithstanding the release and discharge of this Agreement and the lien on the Series J First Mortgage Bonds until the Bonds have been actually paid in full. Notwithstanding anything herein to the contrary, if moneys or governmental obligations have been deposited or set aside with the Trustee pursuant to the provisions of this Section 8.02 204 and the principal of, premium, if any, and interest on the Bonds shall not, in fact, have been actually paid in full, no amendment to the provisions of this Section 204 will be made without the consent of the Securities owner of each of the Bonds affected thereby. Subject to Section 808(b), any defeasance of the Bonds shall require the prior written consent, which consent shall not be unreasonably withheld, of the Bond Insurer. Notwithstanding anything herein to the contrary, in the event that the principal and/or interest due on the Bonds shall be paid by the Bond Insurer pursuant to the Bond Insurance Policy, the Bonds shall remain Outstanding for all purposes, not be defeased or otherwise satisfied and not be considered paid by the Company, and the assignment and pledge hereunder and all covenants, agreements and other obligations of the Company to the registered owners of the Bonds shall continue to exist and shall run to the benefit of the Bond Insurer, and the Bond Insurer shall be subrogated to the rights of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveBondowners.
Appears in 1 contract
Samples: Loan and Trust Agreement (Northeast Utilities System)
Defeasance. Except as provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money), in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) Trustee without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such depositdeposit or, insofar as a default described in clauses (5) or (6) of Section 501 is concerned, at any time during the period ending on the 123rd day after the date of such deposit (it being understood that this condition shall not be satisfied until the expiration of such period);
(d) the Company shall have delivered to the Trustee (i1) either (x) a ruling directed to the Trustee received from the United States Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 1303 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 occurred, or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change in law, and (ii2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 1303 of the Securities of such series have been complied with. The Only the Company's obligations and entitlements in Sections 2.02 through 2.12Article 305, 4.02306, 7.07311, 7.08 607, 610, 1002, 1305 and 8.05 1306 with respect to the Securities of such series shall survive after such defeasance and until the later of the date of the Maturity of such Securities are no longer outstandingseries or payment of such series. Thereafter, only the Company's obligations in Sections 7.07 607, 1305 and 8.05 1306 shall survive. The obligations of any then current guarantor or guarantors shall terminate except for its guarantee of the Company's obligations under Section 607.
Appears in 1 contract
Samples: Indenture (Electric Lightwave Inc)
Defeasance. Except as provided belowWhen there are in the Bond Fund sufficient funds, or non-callable and non-prepayable obligations issued by, or the full and timely payment of which are guaranteed by, the Company United States, in such principal amount, bearing interest at such rates and with such maturities as will be deemed provide, without reinvestment, sufficient amounts to have paid and will be discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and the Trusteepay principal of, at the expense of the Companypremium, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such seriesif any, for payment of the Principal of and interest on the Securities Bonds in full as and when such amounts become due, as determined through a verification report or computation, which may be prepared by the Company, and when all the rights hereunder of the Authority and the Trustee have been provided for (1) the Bondowners will cease to be entitled to any right, benefit or security under this Agreement except the right to receive payment of the funds deposited and held for payment and other rights set forth below or which by their nature cannot be satisfied prior to or simultaneously with termination of the lien hereof, (2) the security interests created by this Agreement (except in such funds and investments) shall terminate, and (3) the Authority and the Trustee shall execute and deliver such instruments as may be necessary to discharge the lien and security interests created hereunder; provided, however, that, if within ninety (90) days of such seriesdeposit, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, the Bonds are not to be redeemed in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series full prior to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to paid in full at maturity, the Trustee), as Trustee and the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series Bond Insurer shall have occurred and be continuing received on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders deposit an opinion of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 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 or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (ii) an Opinion of Bond Counsel to the effect that such deposit and the Holders investment thereof will not affect the exclusion of interest on the Bonds from gross income of the Securities owners thereof for federal income tax purposes; and provided further that if any Bonds are to be redeemed prior to the maturity thereof, such Bonds shall have been duly called for redemption or irrevocable instructions for such a call shall have been given to the Trustee. Upon such defeasance, the funds and investments required to pay or redeem the Bonds in full shall be irrevocably set aside for such purpose. The Trustee shall cause to be mailed to all Bondowners within fifteen (15) days of the conditions of this section being met in the manner herein specified for redemption of Bonds a notice stating that such conditions have been met and that the lien of this Agreement has been discharged, and, if the Bonds are to be redeemed prior to maturity, specifying the date of redemption and the redemption price. Any funds or property held by the Trustee for payment of the Bonds under this section and not required for such payment shall (unless there is an Event of Default hereunder, in which case they shall be applied as provided in Section 604), after satisfaction of all the rights of the Authority and the Trustee, and payment of the rebate, if any, due to the United States under IRC ss.148(f), and upon such indemnification, if any, as the Authority or the Trustee may reasonably require, be distributed to the Company. If Bonds are not presented for final payment when due and moneys are available in the hands of the Trustee therefor, the Trustee shall, without liability for interest thereon, continue to hold the moneys held for that purpose subject to Subsection 305(c), and interest shall cease to accrue on the principal amount represented thereby. When there are in the Bond Fund funds or securities as described in the preceding paragraph as are sufficient to pay principal of, premium, if any, and interest on, some but not all of the Bonds in full as and when such amounts become due and all of the other conditions in the preceding paragraph have been met with respect to such Bonds, the particular Bonds (or portions thereof) for which such provision for payment shall have been considered made shall be selected by lot by the Trustee (or, if the Bonds are then registered to CEDE & CO. and the Book-Entry Only System is then in effect, by The Depository Trust Company) and thereupon the Trustee and the Authority shall take similar action to release the security interests created by this Agreement in respect of such series have a valid security interest Bonds (except in such funds or securities and investments thereon), subject however to compliance with the applicable conditions set forth in the trust funds subject to no prior liens under provisos above. Notwithstanding the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counselforegoing, in each case stating that all conditions precedent provided for herein those provisions relating to the defeasance contemplated by maturity of Bonds, interest payments and dates thereof and the Trustee's remedies with respect thereto, and provisions relating to exchange, transfer and registration of Bonds, replacement and cancellation of Bonds, the holding of moneys in trust and the duties of the Trustee in connection with all of the foregoing and the fees, expenses and indemnities of the Trustee and the Authority, shall remain in full force and effect and shall be binding upon the Trustee, the Authority, the Company and the Bondowners notwithstanding the release and discharge of this Agreement and the lien on the Series K First Mortgage Bonds until the Bonds have been actually paid in full. Notwithstanding anything herein to the contrary, if moneys or governmental obligations have been deposited or set aside with the Trustee pursuant to the provisions of this Section 8.02 204 and the principal of, premium, if any, and interest on the Bonds shall not, in fact, have been actually paid in full, no amendment to the provisions of this Section 204 will be made without the consent of the Securities owner of each of the Bonds affected thereby. Subject to Subsection 608(b), the prior written consent of the Bond Insurer, which consent shall not be unreasonably withheld, shall be required for defeasance of the Bonds. Notwithstanding anything herein to the contrary, in the event that the principal and/or interest due on the Bonds shall be paid by the Bond Insurer pursuant to the Bond Insurance Policy, the Bonds shall remain Outstanding for all purposes, not be defeased or otherwise satisfied and not be considered paid by the Company, and the assignment and pledge hereunder and all covenants, agreements and other obligations of the Company to the registered owners of the Bonds shall continue to exist and shall run to the benefit of the Bond Insurer, and the Bond Insurer shall be subrogated to the rights of such series have been complied with. The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall surviveBondowners.
Appears in 1 contract
Samples: Loan and Trust Agreement (Northeast Utilities System)
Defeasance. Except as provided below, the Company will be deemed to have paid paid, and the Company and the Guarantor will be discharged from any and all obligations in respect of of, the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the CompanyCompany and the Guarantor, shall execute proper instruments acknowledging the same); , provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and of, interest on and any Additional Amounts payable in respect of the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized financial institution or firm of independent public accountants expressed in a written certification thereof writing and delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued of, interest on and any Additional Amounts payable in respect of the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be; provided, that upon any redemption that requires the payment of any applicable premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the applicable premium calculated as of the date of the notice of redemption, with any Applicable Premium Deficit only required to be deposited with the Trustee on or prior to the date of redemption. Any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or under any other material agreement or instrument (other than this Indenture) to which the Company or the Guarantor, as the case may be, is a party or by which it is boundbound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and in each case the granting of Liens in connection therewith);
(c) no Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and in each case the granting of Liens in connection therewith) with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect an Opinion of Counsel confirming that the Holders of the Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes with regard to their ownership of the Securities of such series solely as a result of the Company's exercise of its option such discharge under this Section 8.02 9.2 and will shall be subject to U.S. federal income tax on the same amount and amounts, in the same manner and at the same times time as would have been in the case if such deposit and defeasance discharge had not occurred or (y) an occurred, which Opinion of Counsel to shall be based on a change in current U.S. federal income tax law or a ruling received from or published by the same effect as the ruling described in clause (x) above and (ii) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCCU.S. Internal Revenue Service; and
(e) the Company has delivered to the Trustee an Officers' Officer’s Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 9.2 of the Securities of such series have been complied with. The Company's obligations of the Company and the Guarantor in Sections 2.02 2.2 through 2.12, 4.024.2, 7.078.7, 7.08 8.8, 9.4 and 8.05 9.5, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations of the Company and the Guarantor in Sections 8.7 and 9.5, as applicable, shall survive. The defeasance of obligations in Sections 7.07 respect of Securities of any series by the Company and 8.05 the Guarantor under this Section 9.2 shall survivebe effective notwithstanding any prior covenant defeasance in respect of Securities of such series by the Company or the Guarantor under Section 9.3.
Appears in 1 contract
Samples: Indenture (Alcon Inc)
